Feature Story - November 2009
War Memorial Cross Weighed by High Court
How the court decides the case could ultimately impact the status of sectarian religious symbols at other memorials across the country.
The U.S. Supreme Court recently heard arguments in a case that raises several questions over a small, white, metal cross, that was first erected in 1934 by the Veterans of Foreign Wars in a remote area of the California desert, which later became part of the Mojave National Preserve. The cross, which was part of a memorial honoring World War I veterans, has since been replaced several times, with all versions being about 8 feet tall.
One question is whether the cross amounts to a government endorsement of religion, and, thus, violates the Establishment Clause of the First Amendment to the U.S. Constitution.
Another question centers on whether Congress resolved the problem by transferring the land under the cross to the VFW.
Yet another question is over whether the person who filed the initial challenge against the cross had the legal standing to do so.
Since litigation over the cross began eight years ago, lower courts have ruled the cross is unconstitutional, and must be removed. Two years ago, the cross itself was covered by a plywood box, pending a final disposition of the matter.
In 2001, Frank Buono, a retired National Park Service employee, filed a federal lawsuit to have the cross removed, after the agency refused to allow erection of a Buddhist memorial nearby. Buono, who describes himself as a practicing Roman Catholic, said he had no objection to religious symbols, but did take issue with the government's decision to allow the display of only the cross.
The legal challenge was filed on behalf of Buono by the American Civil Liberties Union. A lower court and the San Francisco-based 9th U.S. Circuit Court of Appeals agreed.
In the meantime, Congress designated the cross as a national memorial, placing it in a select group with just 45 other national memorials, including the Washington Monument and the Jefferson Memorial. Congress also passed laws banning the use of federal dollars to remove the cross and to transfer ownership of land where the cross stood, to the VFW. The latter law also stated that if the VFW used the property for anything other than a memorial, the federal government would retain ownership of the land.
The 9th Circuit subsequently ruled against the government for a second time, deciding that the cross was still a violation of the First Amendment's Establishment Clause, because the VFW was required to maintain a cross on the land.
Buono, in turn, filed a new lawsuit in district court to force the Park Service to remove the cross and to prevent it from transferring the land to the VFW.
The federal court sided with Buono and invalidated the property transfer as an illegal attempt to evade the court's earlier order to remove the cross. The Park Service then appealed that ruling to the 9th Circuit, which in 2007 affirmed the district court's judgment. The Park Service then appealed to the Supreme Court, which agreed to hear the case of Salazar vs. Buono in February.
The Park Service is administered by the Department of the Interior.
In his brief to the high court, Interior Secretary Ken Salazar claimed that the federal court and the appellate court did not have jurisdiction over the case because Buono did not have legal standing to sue, given that he was not injured per se, in that he did not personally find the sight of the Christian cross on public land offensive in and of itself.
Salazar also claimed that even if Buono did have standing to bring the case, the 9th Circuit was wrong in holding that the display of the cross violates the Establishment Clause, because the cross no longer sits on government property, and thus, by definition, does not constitute a government-sponsored religious message.
During arguments before the high court, Peter Eliasberg, an ACLU lawyer seeking the cross's removal, said the symbol is strongly linked to Christianity.
"The cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew," Eliasberg said.
Justice Antonin Scalia, who is Catholic, angrily interjected, "I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion."
Scalia also questioned whether Eliasberg would prefer a war memorial that was "some conglomerate of a cross, a Star of David and a Muslim half moon and star."
In addition, Scalia said, "I don't agree with you that any time the government allows a religious symbol to be erected, it has to allow all religious symbols to be erected in the same place."
However, Eliasberg said context matters, noting that the Veterans Administration offers a choice of 39 different emblems and beliefs on tombstones at Arlington National Cemetery.
Veterans organizations are on both sides of the case, in which Jewish and Muslim veterans claim, the Mojave cross honors Christian veterans and excludes others. Others are concerned that other religious symbols that serve as war memorials could be threatened by a ruling in Buono's favor, a point underscored by Justice Ruth Bader Ginsberg.
"If you prevail and you are right, what happens in Arlington Cemetery, where there's the Argonne Cross Memorial and the Canadian Cross of Sacrifice, both right here in Arlington? What happens to them?"
The Appignani Humanist Legal Center, a division of the American Humanist Association, said it's the first major opportunity for the Roberts court (new U.S. Supreme Court Chief Justice John Roberts) to interpret the meaning of the Establishment Clause.
"A ruling either way is likely to have profound implications. A ruling in Buono's favor will likely lead to the removal of some religious symbols on public property throughout America, while a ruling against Buono may close the court house doors to others who seek to challenge Establishment Clause violations," the center stated.
Likewise, the Baptist Joint Committee for Religious Liberty said the government's position will make it more difficult for citizens to bring Establishment Clause violations before the high court.
"A citizen's religious beliefs should not limit his ability to pursue a case against the federal government to correct an Establishment Clause violation," and a court's examination of a person's religious beliefs "raises concerns about government entanglement in religion," improperly placing the court in the position of evaluating the validity and significance of someone's beliefs, the BJC asserted.
Americans United for Separation of Church and State Executive Director, the Rev. Barry Lynn, said, "The cross in the Mojave Reserve has no historic significance, it has no secular significance; it is a powerful symbol of the dominant religion in this country; and as such, it has no business being in the Mojave Preserve. The sad truth is that the government has been shameless in trying to keep this cross up, all the while knowing it has denied other religious groups the same opportunity."
However, The Rev. Rob Schenk, president of the group, Faith and Action, said, "If a memorial bears a religious symbol, then it should be allowed to stand, because religious symbols are part of our heritage."
Schenk's sentiments were echoed by Concerned Women for America President, Wendy Wright.
"The cross is the most profound symbol of the most humble act of service–to lay down one's life for another. It was veterans who chose the cross to symbolize the service of their brothers and sisters in the military who laid down their lives to keep our country free.
The Supreme Court has the opportunity now to do the right thing and to honor those who give their lives for our country and to respect the religious views of the majority of Americans, particularly those who founded our country. They have the opportunity to recognize that our country is, in fact, founded on Judeo-Christian principles. The Supreme Court has the opportunity to do the right thing, and allow the cross to stand," Wright said.
In its friend-of-the-court brief, the American Center for Law and Justice contends, the legal challenge to the cross has no place in federal court.
"This case is only the most extreme example of a phenomenon that has plagued the federal courts for the past three decades. Ideologically motivated citizens and public interest groups search out Establishment Clause violations, almost always in the form of a passive religious symbol or display of some sort, and make a federal case out of offense at the display," the ACLJ stated.
Alliance Defense Fund Senior Counsel, Jordan Lorence, said, "The ACLU and its allies should not be able to demolish war memorials based on the objection of one person who lives 1,000 miles away and can't seriously claim to have suffered harm from it. If the Mojave Cross Memorial is not allowed to stand, then numerous other veterans' memorials will be vulnerable to legal attack. Americans want memorials to our nations' fallen heroes protected."
That view was shared by Richard Thompson, president and chief counsel for the Thomas More Law Center.
“Despite their claims to the contrary, this case is part of the ACLU’s national agenda to incrementally remove every cross on public land. The Court’s ruling in this case will impact crosses in thousands of memorials nationwide,” Thompson said.
Liberty Legal Institute, which represents more than four million veterans in the case, stated, “This memorial was put up 75 years ago by World War I veterans to honor those who had given their lives for their country. Right now, this memorial is covered in a plywood box. That is a disgrace. Our veterans deserve better.”
A decision by the Supreme Court is expected by next June.
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