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Religious Tolerance logo

Conflict over the Mojave cross

Supreme Court briefs filed. Oral arguments
made. Possible impacts of the ruling.

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2009: Briefs filed with the U.S. Supreme Court:

bulletKen Salazar, Secretary of the Interior, filed a brief claiming that the National Park Service has no obligation to remove the cross. It cites two reasons:
bulletFrank Buono has no legal standing to initiate the lawsuit because he was in no way injured by the presence of the cross. Buono has admitted that he does not find the sight of the cross on public land offensive. He feels that people should be allowed to install displays like the proposed Buddhist memorial on the preserve. But he has not initiated any request to erect such a display. Therefore Salazar concludes that Buono was in no way suffered injury by the presence of the cross. Thus, he has no legal standing.
bulletThe cross is now located on private land owned by the Veterans of Foreign Wars (VFW). Its presence is protected by the free exercise clause in the First Amendment. 1
bulletFrank Buono cites two reasons why he feels he has standing to initiate the lawsuit:
bulletAccording to the Pew Forum, Buono believes that: "Supreme Court precedents recognize such standing for persons who have had 'direct and unwelcome contact with a religious symbol on government land.' Buono argues that his contact with the display was 'unwelcome,' even if the cross itself did not offend him, because it represented for him the government's preference for one faith over others."
bulletHe believes that the cross continues to violate the First Amendment. The 9th Circuit Court's ruled in 2004 that the display of the cross violated the Establishment Clause. This decision was never appealed by the government. Federal court rules prohibit the Supreme Court from reversing the lower court's decision.

He also argues that the transfer of the land under the cross to the VFW was incomplete. The statute states that ownership of the property would revert to the government if the VFW stopped using it as a memorial. Thus, the government continues an interest in the land, and its religious display, in violation of the establishment clause.

2009-OCT-07: Oral arguments before the U.S. Supreme Court:

The Supreme Court heard oral arguments in Salazar v. Buono on OCT-07. 2

Bob Ritter, Legal Coordinator of the Appignani Humanist Legal Center, a division of the American Humanist Association, commented:

"It looks like it will be a very close vote, with Justice Kennedy issuing the deciding vote. It was surprising that few of the questions asked by the justices revolved around the question of standing -- whether or not Respondent Frank Buono has the ability to sue the federal government for violating the Establishment Clause of the First Amendment. Rather, most questions were about the nature of the land transfer. ... A ruling either way is likely to have profound implications. A ruling in Buono's favor will likely lead to the removal of some religious symbols on public property throughout America, while a ruling against Buono may close the court house doors to others who seek to challenge Establishment Clause violations." 3

Robert Marus of the Associated Baptist Press commented:

"Justices heard from attorneys for both sides in the Salazar v. Buono case (No. 08-472). ... Supporters of strong church-state separation feared the court might use the case to severely limit the ability of citizens to file lawsuits against the establishment of religion, but justices spent much more time debating whether the case could be decided on the narrower issue of actions by Congress attempting to preserve the cross. ..."

"... much of the discussion turned on the procedural validity of [U.S. Solicitor General Elana] Kagan's assertion that the government action to remedy the constitutional violation was sufficient."

"A few moments of argument did highlight one significant First Amendment controversy in the case: Whether such a monument on public land could serve a secular purpose. In response to an assertion that the cross honored only Christian war dead by Los Angeles attorney Peter Eliasberg, who argued Buono's side in the case, Justice Antonin Scalia asked, 'The cross doesn't honor non-Christians who fought in the war'?"

"Eliasberg responded, 'A cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins...'."

"Scalia replied, 'It's erected as a war memorial. I assume it is erected in honor of all of the war dead.' Describing the cross as the 'most common symbol of the resting place of the dead,' he asked: 'What would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star'?"

"Eliasberg retorted: 'The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew." The comment brought laughter to the courtroom."

"The justices barely discussed one issue that worried church-state separationists significantly about the case -- whether Buono had legal standing to sue the government over the cross in the first place." 4

Hiram Sasser, director of litigation for Liberty Legal Institute, a conservative Christian legal advocacy group, and one of the attorneys for the VFW in the case, commented:

"The court is probably going to say that this veterans memorial is allowed to stay and that there was never a problem to begin with. And that the transfer of state-owned land to the veterans so they could keep the memorial was OK, and that this veterans memorial is going to continue to stand as it has for 75 years honoring those World War 1 veterans." 5

We suspect that just about all observers agree that the final vote of the justices would be 5 to 4 in favor of something. Recent court decisions on religious and moral issues are almost unanimously this close. But there is no consensus on which side would win.

Possible impacts of the future ruling by the Supreme Court:

Jesse Merriam of Pew Forum writes:

"The significance of the case will come down to which legal avenue the court chooses to resolve the dispute. If the Supreme Court rules in favor of Buono on the Establishment Clause issue, then that ruling could require federal, state and local governments to remove many sectarian religious symbols from memorials across the country. Alternatively, if the high court holds that the display of the cross does not violate the Establishment Clause, then that ruling might allow the government to give one religious group's symbols special prominence in public parks and buildings."

"Moreover, if the court reverses the 9th Circuit's decision on the ground that Buono did not have standing to bring his Establishment Clause claim, then in the future other citizens across the country might find it more difficult to bring similar lawsuits in federal court. The court could limit such a lack of standing to people who claim to be offended specifically by the government's preference for some religious displays over others, or the court might go further and rule that people who generally object to public religious displays lack standing."

"The case also might provide a significant indication of how the Supreme Court's newest member, Justice Sonia Sotomayor, views church-state issues. She has replaced Justice David Souter, who was widely considered to be the high court's most ardent supporter of church-state separation. Sotomayor's position on this case thus might provide some insight into the direction of church-state law under the newly constituted Supreme Court." 1


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

  1. Jesse Merriam, "In brief: Salazar v. Buono," The Pew Forum, 2009-SEP-24, at: http://www.pewforum.org
  2. A transcript of the oral arguments before the Supreme Court on 2009-OCT-07 is available at: http://www.supremecourtus.gov/ This is a PDF file.
  3. "Humanists Weigh in on Supreme Court Case Salazar v. Buono," American Humanist Association, 2009-OCT-07, at: http://www.americanhumanist.org/
  4. Robert Marus, "Supreme Court gets technical in arguments on Mojave cross," Associated Baptist Press, at: http://www.abpnews.com/
  5. Kim Trobee, "Mojave Cross Case Heard at Supreme Court," CitizenLink, Focus on the Family Action, 2009-OCT-07, at: http://www.citizenlink.org/

Copyright © 2001 to 2010 by Ontario Consultants on Religious Tolerance
Latest update: 2010-MAY-23
Author: B.A. Robinson

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