The U.S. Supreme Court on Wednesday heard arguments in a case concerning whether a cross on federal park land in California which memorializes World War I veterans violates the U.S. Constitution. One congressman warned that the case could have an enormous “ripple effect” on memorials across the country including Arlington Cemetery.
The white cross mounted on southeastern California’s Sunrise Rock, commonly known as the Mojave Desert Cross, is seven feet tall. It is currently covered with a plywood box in accordance with a lower court’s order.
A district court initially ruled that the cross had to be removed from the land. Congress then enacted legislation ordering the Department of the Interior to transfer an acre of land which included the cross to the Veterans of Foreign Wars. The property was exchanged for a parcel of equal value elsewhere in the federal preserve where it is located.
The legal case, named Salazar v. Buono, is now before the Supreme Court.
According to the Associated Press, several Supreme Court justices on Wednesday indicated that they agreed with a federal appeals court ruling that the land transfer was an end run around current First Amendment jurisprudence’s prohibitions against government endorsement of religion.
The Ninth U.S. Circuit Court of Appeals had invalidated the transfer, ruling the move would do nothing to minimize the “impermissible governmental endorsement” of the religious symbol.
Other Supreme Court justices on Wednesday thought the transfer resolved constitutional questions, with Justice Samuel Alito asking whether it was not a “sensible interpretation” of a court order.
Judging by the tenor of the discussion, the AP said the justices could rule narrowly on the case and not use it to make a general statement about First Amendment concerns.
Easter Sunday sunrise services have been held at the Mojave Desert Cross for decades.
A former National Park Service employee, Frank Buono, sued to have the cross removed or covered after the agency refused to allow the erection of a Buddhist memorial nearby. Buono, who is being represented by the American Civil Liberties Union (ACLU), describes himself as a practicing Catholic, the Associated Press reports. He said he took issue with the government’s decision to allow the display of only the Christian symbol.
The federal government's lawyers contend that Buono lacks standing to file the lawsuit because, as a Christian, he suffers no harm from the cross. The government characterizes his main complaint as being that others may feel excluded.
The Becket Fund has filed an amicus brief in the case also questioning whether Buono has been injured or denied any rights by the presence of the cross.
"Stripping this country of every symbol--even the religious ones--that might offend somebody somewhere will impoverish American culture," Eric Rassbach, National Litigation Director of the Becket Fund, commented in a press release. "The First Amendment guarantees the right to speak and believe freely; it does not guarantee the right to silence those who disagree with you."
Rassbach added that if the memorial is ruled unconstitutional, tens of thousands of memorials are at risk of legal challenge.
In a Wednesday phone interview, CNA spoke with Rep. J. Randy Forbes (R-VA). The Congressman is the founder and chairman of the Congressional Prayer Caucus and a supporter of an amicus curiae brief filed in the case by the American Center for Law and Justice (ACLJ).
Rep. Forbes, who observed Wednesday’s hearings, reported that justices “peppered” both sets of attorneys with questions. Every justice except perhaps Justice Clarence Thomas asked a series of questions about the case.
He told CNA that the defense’s argument went in some directions he found regrettable, but he also reported that opponents of the Mojave Cross did not do a good job either.
One concern for defenders of the Mojave Cross, he reported, is how passionate the Obama administration will be in its defense of such cases.
The congressman criticized the government for not raising the issue of the legal standing needed to bring a lawsuit. In his view, the standard is so low that anyone who drives by a cross like the Mojave Cross “automatically gets the right to go into federal court.”
“This can cost defendants hundreds of thousands per case,” Rep. Forbes told CNA. He claimed this was the situation in the Mojave Cross case.
Another issue, he said, concerned whether one can have “a five-foot cross on what will be privately owned land.”
If it comes to the point where one cannot, he warned, “the ripple effect is going to be enormous.”
“What do they do to Arlington Cemetery?” he wondered. “How detrimental would that be to many people across the country who have lost spouses and children and parents who have been honored by these crosses at war memorials and other places and now you’re just ripping it up because one person doesn’t like it?”
The congressman pointed out that the Mojave Desert Cross had been up for “years and years and years.”
When it was first erected, he said, “no one had any inkling that we would be at a day where someone would have a constitutional challenge to anything as simple as a cross.”