Mojave Cross Ruling Shows A Supreme Court Shift

The U.S. Supreme Court has moved toward a greater accommodation between church and state, ruling that the lower courts went too far in ordering the dismantling of a cross erected on public land to honor the soldiers who died in World War I.

Using broad language, the court said the Constitution does not require the eradication of all religious symbols in the public realm.

The nation's national war memorials are by and large built on government land, using a combination of government and private funds. The World War I memorial is an exception. It is an 8-foot white cross originally erected on public land without the government's permission by the Veterans of Foreign Wars in 1937. As a memorial, it never got much attention until it became a legal cause celebre, courtesy of the cross that catapulted it into public controversy in the 21st century.

The lower courts ruled that the cross on public land was an unconstitutional government endorsement of religion, and the Park Service made plans to dismantle it.

Then Congress stepped in, declaring the cross the national war memorial for World War I, and transferring to the VFW the land on which the cross stands.

The lower courts, however, declared the measure an unconstitutional end run to avoid complying with the order to dismantle the cross.

Rationale For Decision

The Supreme Court saw it differently Wednesday. Though the five justices in the majority wrote three separate opinions, delineating three different rationales, the principal opinion, written by Justice Anthony Kennedy, spoke in broad terms.

Although the cross is "a Christian symbol," said Kennedy, it was not placed on sunrise rock in the Mojave Desert to send "a Christian message." Nor was it placed there to put a government "imprimatur on a particular creed." Rather, he said, "those who erected the cross intended simply to honor our nation's fallen soldiers."

"The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society," Kennedy said.

Kennedy highlighted that the cross in the Mojave had been there for 70 years. Time "has played its role," he said. For decades, people have gathered to pay their respects; members of the community, rather than let the cross deteriorate, have volunteered to replace it. And when Congress ultimately designated the cross as a national memorial for soldiers killed in World War I, that "gave recognition to the historical meaning the cross had attained."

Consequences Of Decision

Experts reading the tea leaves of the opinion had different interpretations.

Jay Sekulow of the conservative American Center for Law and Justice saw the ruling as a green light for religious symbols on public land, whether erected by the government itself or by land transfers to private entities.

"If you look at this case, coupled with the Ten Commandments case," he said, "it's becoming very clear that the public display of monuments, even religious monuments, is not a per se violation of the Constitution."

But Peter Eliasberg of the ACLU disagreed, contending that what might be permissible for a monument in place for 70 years would not be for a relatively new monument.

"I don't see this as any type of broad pronouncement," Eliasberg said.

University of Michigan law professor Douglas Laycock, who filed a brief urging the court to uphold the order to dismantle the cross, noted that Wednesday's ruling did not resolve the big question waiting to be answered: whether the government can itself place a religious symbol on government land.

"The real issue, whether it's crosses or any other kind of display, is postponed until the next case," said Laycock, adding that he is "not optimistic about how the next case is going to come out."

The case now goes back to the lower courts, where civil libertarians will seek to show that the cross received favored treatment not accorded to other religions. Exhibit A will be the refusal by the Park Service to allow a Buddhist shrine to be built in the Mojave Desert.

But the language in Wednesday's Supreme Court decision strongly suggested the land transfer was justified in this instance, even if extra steps must be taken to ensure that the public knows the cross is a privately maintained memorial.

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