New York Times Has Decent Article About the Mojave Cross

Religion Largely Absent in Argument About Cross
October 8, 2009
By ADAM LIPTAK

WASHINGTON — A Supreme Court argument on Wednesday about the fate of a cross in a remote part of the Mojave National Preserve in southeastern California largely avoided the most interesting question in the case: whether the First Amendment’s ban on government establishment of religion is violated by the display of a cross as a war memorial.

The cross in the desert was erected in the 1930s by the Veterans of Foreign Wars to honor fallen service members. Ten years ago, Frank Buono, a retired employee of the National Park Service, objected to the cross, saying it violated the establishment clause.

In the intervening decade, Congress and the courts have engaged in a legal tug of war. Congress passed measures forbidding removal of the cross, designating it as a national memorial and, finally, ordering the land under the cross to be transferred to private hands. Federal courts in California have insisted that the cross may not be displayed.

At Wednesday’s argument, only Justice Antonin Scalia appeared inclined to reach the establishment clause question.

Other justices were interested in the narrower issue of whether the land transfer would be proper.

Still others asked whether Mr. Buono had suffered an injury concrete and direct enough to give him standing to sue. Mr. Buono, who is a Roman Catholic, has said he objects to the display of any permanent religious symbol on government land.

Most of the argument in the case, Salazar v. Buono, No. 08-472, concerned the tangled history of Mr. Buono’s lawsuit. A federal judge in California in 2002 ordered the government to stop displaying the cross, and the United States Court of Appeals for the Ninth Circuit affirmed that decision in 2004. The government chose not to appeal it to the Supreme Court.

The case before the court arose from a second round of litigation concerning whether the law transferring the land under the cross violated the original order. Much of the argument concerned which issues were still before the court.

The question of the meaning of a cross in the context of a war memorial did give rise to one heated exchange, between Justice Scalia and Peter J. Eliasberg, a lawyer for Mr. Buono with the American Civil Liberties Union Foundation of Southern California.

Mr. Eliasberg said many Jewish war veterans would not wish to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.”

“What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom.

Justice Scalia grew visibly angry. “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,” he said. “I think that’s an outrageous conclusion.”

There was a second testy exchange, this one between Mr. Eliasberg and Chief Justice John G. Roberts Jr. Mr. Eliasberg said the veterans’ organization was unlikely ever to tear down the cross if the transfer called for by Congress went through, citing a plaque that Congress ordered to accompany the cross.

The chief justice asked for the text of the plaque.

“ ‘This cross’ — in big letters — ‘erected in honor of the dead of foreign wars,’ ” Mr. Eliasberg responded.

A couple of minutes later, Chief Justice Roberts returned to the subject and corrected Mr. Eliasberg. The actual text on the plaque, the chief justice said, was more elaborate: “The cross, erected in memory of the dead of all wars, erected 1934 by members of Veterans of Foreign Wars, Death Valley Post 2884.”

“That’s a big difference,” the chief justice said, explaining that the longer version made clear that the cross was not a government memorial.

Mr. Eliasberg apologized and said he had answered in the context of the question of whether the veterans’ group would “feel constrained to keep the cross up” in light of a plaque referring to a cross.

“The context of my question,” Chief Justice Roberts shot back, “was, ‘What does the plaque say?’ ”

Mr. Eliasberg apologized some more, saying he had not meant to mislead the court.

Liberty Legal Institute Speaks Out on Mojave War Memorial, U.S. Supreme Court Hears Arguments Today

WASHINGTON, D.C. – Following oral arguments in the U.S. Supreme Court on the Mojave Desert War Memorial (Salazar v. Buono), Kelly Shackelford, Chief Counsel of Liberty Legal Institute, which represents more than four million veterans in the case, released the following statement:

“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. We hope and believe today is the beginning of the end of these attacks on our veterans memorials.”

Liberty Legal Institute represents the Sandozes and over four million veterans though the Veterans of Foreign Wars of the U.S. (VFW), The American Legion, Military Order of the Purple Heart, and American Ex-Prisoners of War, and launched www.DontTearMeDown.com just before Memorial Day in order to bring attention to the case.

Liberty Legal Institute is a legal organization committed to the defense of religious freedoms and First Amendment rights and practices before the U.S. Supreme Court.

NewsMax on the Mojave Cross

High Court Hears Arguments About Mojave Cross
Thursday, October 8, 2009

WASHINGTON -- The Supreme Court appeared divided between conservatives and liberals Wednesday over whether a cross on federal park land in California violates the U.S. Constitution. Several conservative justices seemed open to the Obama administration's argument that Congress' decision to transfer to private ownership the land on which the cross sits in the Mojave National Preserve should take care of any constitutional questions. "Isn't that a sensible interpretation" of a court order prohibiting the cross's display on government property? Justice Samuel A. Alito Jr. asked.

The liberal justices, on the other hand, indicated that they agree with a federal appeals court that ruled that the land transfer was a sort of end run around.

Justice Anthony M. Kennedy, often the decisive vote in these cases, said nothing to tip his hand.

The tenor of the discussion suggested that the justices might resolve this case narrowly, rather than use it to make an important statement about their view of the separation of church and state.

The cross, on an outcrop known as Sunrise Rock, has been covered in plywood for the past several years following federal court rulings that it violates the constitutional amendment on religion. Court papers describe the cross as being 5 feet to 8 feet tall.

A former National Park Service employee, represented by the American Civil Liberties Union, sued to have the cross removed or covered after the agency refused to allow erection of a Buddhist memorial nearby. Frank Buono describes himself as a practicing Roman Catholic who has no objection to religious symbols, but he took issue with the government's decision to allow the display of only the Christian symbol.

Easter Sunrise services have been held at the site for decades.

The 9th U.S. Circuit Court of Appeals in San Francisco repeatedly has ruled in Mr. Buono's favor. Congress has intervened on behalf of the cross, prohibiting the Park Service from spending money to remove the cross, designating it a national memorial and ultimately transferring the land to private ownership.

The appeals court invalidated the 2004 land transfer, saying that "carving out a tiny parcel of property in the midst of this vast preserve -- like a doughnut hole with the cross atop it -- will do nothing to minimize the impermissible governmental endorsement" of the religious symbol. Veterans groups are on both sides of the case, with some worrying that other religious symbols that serve as war memorials could be threatened by a ruling in Mr. Buono's favor.

Jewish and Muslim veterans, by contrast, object that the Mojave cross honors Christian veterans and excludes others.The administration wants the court to rule that Mr. Buono had no right to file his lawsuit because, as a Christian, he suffers no harm from the cross. His main complaint is that others may feel excluded, the government says. Alternatively, the administration says the land transfer took care of any constitutional problem.