Case upheld on appeal, twice.
Video of cross. Another appeal. Final appeal.
2004-JUN-09: Appeals court upholds decision of lower court:
The Department of Justice appealed the lower court's decision to the
U.S. Court of Appeals for the 9th Circuit.
Peter Eliasberg, managing attorney for the ACLU of Southern California,
"The [9th Circuit] said this case is really quite simple. Using a sectarian
religious symbol is not permissible on federal land. Sometimes you just have to
hit them over the head three, four or five times."
The government defended the cross using two arguments:
that the cross was a war memorial. Eliasberg responded:
"That doesn't honor Muslim veterans,
Jewish veterans, Atheist
veterans or Agnostic veterans. It's a preeminent
symbol of a [single] religion. If we want to have a war memorial on federal
land, the government certainly knows how to do that without using a divisive
sectarian religious symbol."
The enabling legislation to transfer the land ownership had been approved earlier in 2006, but
had not been implemented by the time of the appeal. The government
argued that the court should not rule on the case, because the cross was soon
to be on private land and the constitutional conflict would be moot.
Circuit Court Judge Alex Kozinski wrote the 14 page ruling. He noted that
the land transfer could take years to complete. Also, there are provisions in
the legislation whereby the land might eventually be transferred back to government
ownership, thus putting the cross back on public land.
The court upheld the lower court's decision. Judge Kozinski wrote: "This case is not yet moot and may not be for a significant time, as
defendants conceded that the land transfer could take as long as two years to
2008-MAY-14: U.S. District Court rules again on cross constitutionality:
In 2005-APR, Judge Robert J. Timlin addressed the cross legality again. He
ruled that the proposed transfer of ownership of a 1 acre piece of land where
the cross is located is unconstitutional. He wrote:
"It is evident to the court that the government has engaged in Herculean
efforts to preserve the Latin cross on federal land and that the proposed
transfer of the subject property can only be viewed as an attempt to keep the
Latin cross atop Sunrise Rock without actually curing the continuing
Establishment Clause violation by Defendants." 2
Peter Eliasberg, of the ACLU of Southern California commented:
"The judge's decision sends a clear message that the federal government
should not endorse one religion over another," said Peter Eliasberg, managing
attorney for the ACLU of Southern California. "The courts have consistently held
that the cross in the Mojave National Preserve violates the First Amendment."
2006-SEP-30: Video of the Mojave Cross:
Greg Tinti and KT Cat posted a brief movie on YouTube in late 2006. It is
also featured on the StopTheACLU.com website:
It shows a successful
search for the Cross in the Mojave National Preserve. The cross had been covered up
-- presumably by the National Park Service --
with a plywood cover as a result of court orders. According to StopTheACLU.com: "Seeing
a cross covered in plywood is startling to me. It is celebrated by the ACLU as a
victory. To me it ... what word can I use to describe this anti-religious display?
Several people commented on the entry on StopTheACLU website:
STATberkley: "I watched the video and now I'm in tears. God help
Ogre: "That is so sad."
Clay: "Nothing like the good old Atheist Communist Litigation Union
to come along and ensure that someone's Constitutional freedom of expression
of their religion is summarily taken away."
das heize: "Someone local please print a cross on that plywood!!!
jinxmchue: "Plywood? Just a couple
years ago, it was covered by a white tarp. I can only assume that the tarp was
replaced with plywood because the shadow of the cross (heh, like the song)
could be seen through the tarp if the sun was behind it. Can't have that, now,
can we? 3
2008-MAY-14: U.S. Court of Appeals rejected appeals to preserve cross:
In 2007-SEP, the U.S. 9th Circuit Court of Appeals
ruled in favor of the ACLU, declaring the cross an "...impermissible
governmental endorsement of religion." 4 They
ruled that the land exchange was a "sham" and an"... attempt
by the government to evade the permanent injunction enjoining the display of the
Latin cross on federal land."
The Justice Department of the Bush
administration made a total of four appeals to the U.S. Court of Appeals for
the Ninth Circuit in vain attempts to preserve the cross. In this final
appeal, The Ninth Circuit Court ruled that the purpose of the land exchange
was to preserve the cross in spite of its violation of the First Amendment. The
"... carving out a tiny parcel of property in the midst of this vast Preserve
like a donut hole with the cross atop of it -- will do nothing to minimize the
impermissible government endorsement." 5
for Environmental Responsibility (PEER) board member Frank Buono -- the
individual who originally brought the lawsuit -- said:
"The Bush administration and its congressional allies have tried every
contortion to safeguard this undeniably Christian symbol and, in so doing,
tarnish our constitution. It is time for the Justice Department to stop this
He expressed concern that the government's legal arguments in this case may
have undermined Park Service authority over private lands inside parks. 5
2008-FALL: Appeal to the U.S. Supreme Court:
Government lawyers in the Bush administration appealed the decision to the
U.S. Supreme Court. They said that the lower court's "seriously
misguided decision [would require the government] ...to tear down a cross that
has stood without incident for 70 years as a memorial to fallen service
members." They also challenged whether Buono could legitimately initiate the
lawsuit. He now lives in Oregon and does not appear to be suffering any
immediate harm from
the cross' existence.
Of course, there is actually no need to "tear down" the cross. It
can simply be unbolted, moved onto one of countless locations on nearby private land, and reattached
to a new foundation.
The VFW submitted an amicus-curia (friend of the court) brief suggesting
that if the 9th Circuit ruling is upheld, that there might well be future
challenges to the display of crosses at the Arlington National Cemetery and
During 2009-FEB, the U.S. Supreme Court agreed to hear the case,
now called Salazaar vs. Buono, in 2009-OCT. (Ken Salazar is the current
Secretary of the Interior in the Obama administration). It is a very important case
because it is the first opportunity for the Roberts Court to decide a lawsuit
that directly involves the 1st Amendment's
establishment clause. 4
"Last Stand for the Mojave Cross? Supreme Court Only Option to Stay
Removal of Giant Cross after 9th Circuit Ruling," Public Employees for
Environmental Responsibility, 2008-MAY-23, at: