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Mojave Cross Ruling Shows A Supreme Court Shift

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Mojave Cross Ruling Shows A Supreme Court Shift

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Mojave Cross Ruling Shows A Supreme Court Shift

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STEVE INSKEEP, host:

As Charlie Crist prepares to leave his party, let's talk about another separation - the separation between church and state. That was on the minds of the justices of the Supreme Court. Here was the question: Should a cross in California's Mojave Desert, which honors soldiers who died in WWI, be allowed to remain on public land?

The justices were deeply divided, but ruled yesterday that lower courts went too far in ordering the cross dismantled. The court said the Constitution does not require the eradication of all religious symbols in public. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: This country'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 eight-foot white cross originally erected in 1937 on public land without the government's permission by the Veterans of Foreign Wars.

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 VWF 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.

Yesterday, the Supreme Court saw it differently. 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. It was not 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 goal of avoiding government endorsement of religion, he added, does not require eradication of all religious symbols in the public realm.

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 there 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 the national memorial for soldiers killed in World War I, that gave recognition to the historical meaning the cross had attained.

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.

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.

TOTENBERG: But Peter Eliasberg of the ACLU disagrees.

Mr. PETER ELIASBERG (Attorney, ACLU): If we're talking about a symbol that maybe has been there for 70 years, that might be the result, but if youre talking about a symbol thats been there for five years or 10 years or 20 years, it could be a completely different result. I dont see this as any kind of broad pronouncement that shows that in any case in the future where the governments held to have acted unconstitutionally, can just simply go turn around and transfer the land under any set of circumstances and that alone would be enough to remedy the problem.

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

Professor DOUGLAS LAYCOCK (University of Michigan Law School): The real issue about, you know, whether it's crosses or any other kind of display, is postponed until the next case, and I'm not optimistic about how the next case is going to come out.

TOTENBERG: 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 Mohave Desert.

But the language in yesterday'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.

Nina Totenberg, NPR News, Washington.

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