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NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: 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.
FRANK BUONO: 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: 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.
JAY SEKULOW: 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: 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.
DOUGLAS LAYCOCK: 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: Again, Douglas Laycock.
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: Nina Totenberg, NPR News, Washington.
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