Supreme Court: Cross Can Stay On Federal Land

A 5-foot cross erected to honor veterans of foreign wars will remain where it has stood within the Mojave National Preserve. The Supreme Court's ruling Wednesday ends a battle to have the cross removed based on a constitutional challenge to the presence of a religious symbol on public land.

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A fractured Supreme Court majority ruled today that the lower courts went too far in ordering the dismantling of a large cross. It had been erected on public land to honor fallen soldiers. The Court said the Constitution does not require the eradication of all religious symbols in the public realm.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The eight-foot high white cross at the center of today's ruling was first erected in 1937 by the Veterans of Foreign Wars. It stands atop an outcropping of rocks in the midst of a huge national land preserve in the Mojave Desert. It's been rebuilt twice by private citizens. And in 1999, when a Buddhist asked for permission to erect a shrine nearby, the Park Service said no. That set in motion a series of court challenges and congressional actions culminating in today's ruling.

The challenge to the cross was brought by a retired Park Service assistant superintendent named Frank Buono, who was assigned to the Mojave Desert when it first opened. Buono continued to drive by the cross after he retired and, although a veteran and a mass-going Catholic himself, he was troubled.

Mr. FRANK BUONO (Retired Assistant Superintendent, Park Service): It's one thing to have crosses in one's house or in one's churches, but another to have one permanently affixed to lands that belong to everyone.

TOTENBERG: Two lower courts subsequently agreed that the cross violated the Constitution's ban on government endorsement of religion. But when the Park Service moved to take down the cross, Congress stepped in, first barring any removal and then transferring the land on which the cross stood to the VFW. The lower courts however ruled the land transfer a sham aimed at evading court orders.

Today, the Supreme Court saw things differently and the principle decision, written by Justice Anthony Kennedy, used broad language aimed at accommodating religion in the public square.

The goal of avoiding governmental endorsement of religion does not require eradication of all religious symbols in the public realm, said Kennedy. The Constitution does not oblige government to avoid any public acknowledgement of religion's role in society.

The lower courts, he said, were mistaken in concentrating solely on the religious aspects of the cross divorced from its background and context. A cross, said Kennedy, is not merely a reaffirmation of Christian beliefs, here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields, marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

Defenders of religious monuments on public land called the decision a major victory. Here's Jay Sekulow of the conservative Center for Law and Justice.

Mr. JAY SEKULOW (Chief Counsel, American Center for Law and Justice): If you look at this case coupled with the 10 Commandments Case, it's becoming very clear that the public display of monuments, even religious monuments, is not a per se violation of the Constitution that a context matters.

TOTENBERG: But the Supreme Court was deeply fractured in today's ruling. Justice Kennedy's opinion spoke for himself and only two other justices: Alito and Roberts. And Alito wrote separately to say he saw no reason to send the case back to the lower courts. Two other conservative justices, Scalia and Thomas, agreed that the cross should remain as is but on totally different and technical grounds.

Unanswered in today's ruling is whether the government could constitutionally erect the cross itself on its own property. Also unresolved, notes University of Michigan law professor Douglas Laycock, is precisely what steps must be taken in this case to separate the government from the private display of the cross.

Professor DOUGLAS LAYCOCK (Law, University of Michigan Law School): If it's once been on government land and then they privatize it, what do they have to do in the way of safeguards and notice to the world to make that a real privatization? No answer to that question either. They kicked that back to the district judge.

TOTENBERG: Justice Kennedy, however, did send some pretty strong signals to the lower courts. Even assuming that Congress was trying to make an end run around the earlier court rulings in this case, he said, the court should still consider measures short of removing the cross -measures such as requiring signs telling the public that the cross is a private display; requiring a fence to separate the cross from the national preserve; or even revoking the designation of the cross as a national memorial.

Again, Douglas Laycock.

Prof. LAYCOCK: My guess is on the remand, we'll get some of those things and we won't get all of them. What the government did here was a total sham, and if there are five of us to say a total sham is good enough, then that would have been the end of these cases.

TOTENBERG: Dissenting from today's decision was Justice John Paul Stevens, along with Justices Ginsburg, Breyer and Sotomayor. I certainly agree, said Stevens, that the nation should memorialize the service of those who fought and died in World War I. But no other national war memorial commemorates our veterans' sacrifice in predominantly religious ways. Singling out one religious symbol to honor those who died in the Great Wars, said Stevens, is not only unconstitutional; it is a dramatically inadequate and inappropriate tribute.

Still, in many ways, today's decision was a relief to both sides in the long-running debate over these religious symbols on public land. Veterans' groups were relieved that religious monuments in places like Arlington National Cemetery are not in jeopardy. Civil libertarians were relieved that the newly-energized conservative Supreme Court majority did not go for the gold and simply allowed government-sponsored religious displays.

But that day may be coming; those who have long urged greater accommodation between church and state were greatly heartened by today's ruling. Those advocating a strong separation of church and state, on the other hand, felt they had dodged a bullet but probably not for long.

Nina Totenberg, NPR News, Washington.

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