On Monday of this week, in a brief filed in the Supreme Court in Salazar v. Buono, the United States government defended the constitutionality of the 75-year old Mojave Desert Cross, which memorializes World War I veterans. The ACLU is representing a former park assistant Superintendent, Frank Buono, who claims to be offended by the display of a cross on government property where someone he knew was denied permission to erect a Buddhist symbol.
Buono, who claims to be a practicing Roman Catholic, does not object to religious symbols on private property, but the cross is located in the Mojave National Preserve, which is property of the United States. The cross, standing 5-8 feet tall is made with 4 inch diameter white painted metal pipe. The cross stands atop Sunrise Rock and rises 15 to 20 feet above grade. It can be seen from Cima Road, about 100 yards away, 11 miles from Interstate 15, and 7 miles from the remote town of Cima (population 23).
The memorial has been the subject of several pieces of federal legislation. In 1999, the Park Service denied a request to erect a Buddhist shrine near the cross and indicated its intention to remove the cross. The following year, Congress prohibited the Park Service from spending federal funds to remove the cross. One year later, Congress designated the “five-foot-tall white cross first erected by the Veterans of Foreign Wars of the United States in 1934 * * *as well as a limited amount of adjoining Preserve property” as a “national memorial commemorating United States participation in World War I and honoring the American veterans of that war." That legislation also ordered the Secretary of the Interior to acquire a replica of the original plaque and cross, and to install the replica plaque at the memorial. Then in 2003, Congress prohibited the spending of any federal funds to remove any World War I memorial.
Buono filed suit and the Federal District court held that the presence of the cross on federal land violates the Establishment Clause because “the primary effect of” the public display of the cross “advances religion. The government subsequently covered the cross with a large plywood box, and the cross remains so covered. Next, Congress enacted legislation ordering the Secretary of the Interior to convey to the VFW “a parcel of real property consisting of approximately one acre in the Mojave National Preserve and designated as a national memorial commemorating United States participation in World War I and honoring the American veterans of that war,” in exchange for a privately owned, five-acre parcel of land elsewhere in the Preserve. But, the courts held that transferring the land, along with the offending cross, was ineffective at solving the separation of church and state violation. Thus, the courts prohibited the transfer of the land to the VFW.
This case still has a way to go before there is a decision. The Supreme Court agreed to hear the case back in February of this year and oral arguments will probably happen in the fall term.
In the filing this week, the U.S. government argued that the case should be dismissed because the plaintiff has not been personally injured or denied any rights by the presence of the cross; he merely claims to be offended by it. "Stripping this country of every symbol-even the religious ones-that might offend somebody somewhere will impoverish American culture," said Eric Rassbach, National Litigation Director of the Becket Fund for Religious Liberty. "The First Amendment guarantees the right to speak and believe freely; it does not guarantee the right to silence those who disagree with you." "If the Supreme Court strikes down this memorial, tens of thousands of memorials around the country stand at risk," added Rassbach.
