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Conflict over the Mojave cross

Case upheld on appeal, twice.
Video of cross.
Another appeal. Final appeal.

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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, said.

"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:

bulletThey asserted 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."

bulletThe 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 complete." 1

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? It offends."

Several people commented on the entry on StopTheACLU website:

bulletSTATberkley: "I watched the video and now I'm in tears. God help our nation!"
 
bulletOgre: "That is so sad."
 
bulletClay: "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."
 
bulletdas heize: "Someone local please print a cross on that plywood!!!
 
bulletjinxmchue: "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 ruling stated:

"... 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
Public Employees 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 inane crusade."

He expressed concern that the government's legal arguments in this case may have undermined Park Service authority over private lands inside parks. 5

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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 elsewhere.

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

The story continues...

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Kimberly Edds, "Cross in Mojave Desert Preserve Barred. 9th Circuit Agrees 'War Memorial' Violates Separation of Church and State," Washington Post, 2009-JUN-09.
  2. "U.S. District Court Rules Mojave Cross Land Transfer Unconstitutional," ACLU of Southern California, 005-APR-12, at: http://www.aclu-sc.org/
  3. "The Forbidden Mojave Desert Cross," StopTheACLU, 2006-NOV-28, at: http://www.stoptheaclu.com/
  4. "Supreme Court to hear Mojave cross case," Los Angeles Times, 2009-FEB-24, at: http://www.latimes.com/
  5. "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: http://www.commondreams.org/

Copyright © 2001 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-OCT-09
Author: B.A. Robinson

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