Supreme Court Keeps Mojave Cross Case Alive

The divided decision sends case to lower court and hints cross should stand.

January 11, 2010, 8:21 PM

WASHINGTON, April 28, 2010— -- A divided Supreme Court ruled today that a lower court failed to conduct an appropriate analysis when it ordered a white cross removed from California's Mojave National Preserve. The cross, first erected by the Veterans of Foreign Wars more than 70 years ago, had become a flashpoint in the ongoing debate about religious symbols on public property.

"The goal of avoiding governmental endorsement [of religion] does not require eradication of all religious symbols in the public realm," Justice Anthony Kennedy wrote in the 5-4 majority opinion. "A cross by the side of a public highway marking, for instance, the place where a state trooper perished, need not be taken as a statement of governmental support for sectarian beliefs."

Kennedy's language was bold regarding the symbolism of a cross, which, he said, can include non-religious significance.

"A Latin cross is not merely a reaffirmation of Christian beliefs," he wrote. "It is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this Nation and its people.

"Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields making the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

The legal history of the cross has been tortured and today's ruling does not put the case completely to rest. Kennedy ordered the case back to the lower court for further proceedings.

The ruling dismayed those who believe the cross should come down.

"This court clearly wants the lower court to find a way to maintain this religious symbol in this public park," said Barry Lynn of Americans United for Separation of Church and State. "We are very disappointed."

The cross stood peacefully for years until the Park Service was asked if a Buddhist Shrine could also be built near the cross.

When the Park Service declined the request, Frank Buono, a retired National Park Service employee, expressed his dismay that the government was showing favoritism of one religious symbol over another. He later filed suit in federal district court.

Supreme Court: Lower Court Analysis Flawed

While Buono, a Roman Catholic, did not find the cross itself objectionable, he was disturbed that it stood on government property when the government would not allow individuals to erect other permanent displays celebrating their religions.

With the help of the American Civil Liberties Union, Buono took his case to federal court and won. The court found that the cross violated the Establishment Clause of the Constitution, which prohibits the government from giving preference to one religion.

Seeking to quell the controversy, Congress stepped in, trying to find a way to remedy the situation. Congress looked for a fine line between those who viewed the cross as a religious symbol on government property and others, notably veterans, who viewed it as a symbol of the sacrifices of fallen soldiers.

Congress found a novel way to deal with the situation in 2003, passing legislation to transfer the land to private ownership.

But transferring the land to private ownership did not end the problem. A federal court enjoined the transfer, finding that the congressional response did not adequately resolve the constitutional violation that had occurred.

The Supreme Court found today that the lower court's analysis of the transfer was flawed.

"Even if, contrary to the congressional judgment, the land transfer were thought an insufficient accommodation in light of the earlier finding of religious endorsement, it was incumbent upon the District Court to consider less drastic relief than complete invalidation of the land-transfer statute," Kennedy wrote for the majority.

At oral arguments, there was some discussion of the use of signs or placards to indicate that the cross display is a private memorial, not a government owned symbol.

Justice John Paul Stevens, writing in dissent with Justices Ruth Bader Ginsburg and Sonia Sotomayor, wrote that Congress' action transferring the ownership of the property to private hands was an improper remedy.

Stevens said a Latin cross, "necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as non believers, are known to differ.

"I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message."

ABC News Live

ABC News Live

24/7 coverage of breaking news and live events