Supreme Court Says Veterans Memorial Cross Can Stay

EP News--- The U.S. Supreme Court ruled in April that a veterans memorial cross currently covered up by a box in California’s Mojave Desert can stay right where it is.

In a 5-4 decision, the court agreed that the 9th Circuit decision holding the memorial unconstitutional needed to be reversed, even though there were not five votes for any particular legal basis for the reversal. The case now goes back to the trial court level. The lower court order was the result of a suit filed by the American Civil Liberties Union in 2001 on behalf of a former Mojave Preserve employee who claimed to be “offended” by the cross.

“It is a disgrace that this memorial to our fallen veterans has been covered in a box of plywood for 10 years while the case made its way to the U.S. Supreme Court,” said Kelly Shackelford, president and CEO of Liberty Institute, which represents Henry and Wanda Sandoz, the longtime memorial caretakers, and more than 4 million veterans through the VFW, The American Legion, Military Order of the Purple Heart, and the American Ex-Prisoners of War.

He added: “We applaud the Supreme Court for overruling the decisions below, but this battle is not over. This box must come off. No war memorial with religious imagery is safe until the court rules that these memorials, which serve to remember our fallen heroes of the military, are allowed under the Constitution.”

Various forms of the memorial cross have existed at the location since 1934, when the Veterans of Foreign Wars placed it at its current spot. In 2004, Congress authorized the transfer of one acre of land under the cross back to the VFW, a private organization, in exchange for five acres of other land. The ACLU argued that the land transfer was unconstitutional, and a district court judge agreed. The 9th U.S. Circuit Court of Appeals upheld the lower court’s decision.

The national commander of The American Legion hailed the decision of the Supreme Court to reverse a lower court decision that could have required the removal of a cross that has stood in the Mojave National Preserve for more than 75 years.

“I commend the court for its decision that finally restores common sense that will enable this symbol to stand proudly as intended -- a tribute to honor American soldiers who died in World War I,” said National Commander Clarence E. Hill. “This is a landmark decision that not only preserves the Mojave Desert cross, but also helps protect all memorials to our fallen heroes.”

The American Legion joined as an amicus curiae (friend of the court) in action favoring preservation of the monument that resulted in the case being argued before the U.S. Supreme Court last year.

“The court reaffirmed the will of the people through Congress, which passed legislation to accommodate the cross,” Hill said. “The cross should remain because Congress transferred a small plot on which it stands to a private group and addressed constitutional concerns.”

Faith and Action, a Washington-based Christian mission to government officials, had joined with other groups in support of the display located in a lonely stretch of desert near Barstow, California. In a legal brief filed with the Supreme Court, Faith and Action argued that the cross did not violate the First Amendment, as the Ninth Circuit Court of Appeals had found.

Rev. Rob Schenck, president of Faith and Action, had visited the cross last year. He was at the Supreme Court this morning when the decision was announced by Associate Justice Anthony Kennedy who authored the opinion. Rev. Schenck said, “This is a victory for the First Amendment and for the rights of citizens, including veterans, to use meaningful symbols like the cross in public displays. It’s not just common sense, it’s in keeping with our most cherished beliefs, customs and values. This is a day to thank God for our freedoms in this country and for judges that have the integrity to uphold them.”

Joining in the majority were Justices Kennedy, Roberts, Alito, Scalia and Thomas. Justices Stevens, Ginsburg, Sotomayor and Breyer filed dissenting opinions.

Justice Anthony Kennedy wrote in the ruling, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”

The Court remanded the case to the U.S. District Court to give it a chance to see if any other legal alternatives exist. However, the High Court reminded the District Court that: “Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality.”

The cross will remain covered pending the district court’s review.

(4/30/2010)

[Back]