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Religious Tolerance logo

Conflict over the Mojave cross

Supreme Court ruling; Reactions to the ruling.

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2010-APR-28: Supreme court issues ruling:

The U.S. Supreme Court ruled -- by the expected 5 to 4 vote -- that the cross can remain in place, at least for now. 1 They remanded the case back to the district course, with the comment that the lower court used the wrong legal standard when it decided to invalidate the transfer of the land surrounding the cross to a private group. The plywood covering that has been in place since 2002 was to be removed.

As expected, the four justices who are strict constructionists, Chief Justice John G. Roberts, and Justices Samuel A. Alito, Antonin G. Scalia, and Clarence Thomas, all agreed that the presence of the cross is constitutional. All are male Roman Catholics; 2 they generally vote as a block on religious and moral topics. They were joined by Justice Anthony M. Kennedy, also a male Roman Catholic, who wrote the ruling.

Justices Ruth Bader Ginsburg, Sonia Sotomayor, John Paul Stevens, and Stephen Breyer dissented.

The basic question considered by the court was whether the cross is a solely Christian religious symbol or whether it represents a war memorial for all American soldiers killed in wartime -- whether they be Christian, Jewish, Muslim, a follower of another religion, or a follower of no religion.

Justice Anthony M. Kennedy, writing for the majority, stated:

"The District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. 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 marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten." 1

Justice Stevens' dissent stated in part:

"In my view, the transfer ordered by §8121 would not end government endorsement of the cross for two independently sufficient reasons:"

"First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding that the name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land."

"Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display. Congress’ intent to preserve the display of the cross maintains the Government’s endorsement of the cross." 3

It may be worth noting that, in recent years, the Mojave Cross has been formed of two pieces of pipe welded together; they form the design of the cross most often found in Protestant denominations. The version of the Cross use by Roman Catholics is a crucifix, which shows a half-naked Yeshua of Nazareth (a.k.a. Jesus Christ) being tortured to death. So the five Roman Catholic Justices on the court might easily interpret the Mojave Cross as a religiously neutral symbol; it is not their cross symbol.

Unfortunately, the presence of the cross also evokes some very negative feelings among non-Christian groups like Jews, Muslims, the Roma, Native Americans, Christian dissenters and heretics, and others who have historically been the victims of mass murder, pogroms, and even genocide perpetrated by Christians. Justice Kennedy did not comment on the feelings of those groups towards the cross. Some veterans who are followers of non-Christian religions are probably distressed to varying degrees at the exclusiveness of the Christian Cross when used as a marker representing all of the fallen soldiers; many probably regard this as a denying recognition of their religion in favor of exclusive recognition of the Christian victims of war.

Justice Kennedy wrote that because of the "highly fact-specific nature" of the case, it is "unsuited for announcing categorical rules." That is, the Mojave Cross is a special lawsuit and not suitable for establishing a precedent in the field of separation of church and state. 1

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Reactions to the court's decision:

  • Peter Menkin of the The News Examiner commented:

As a taste of the real argument in differences on the United States Supreme Court, it appears to this writer that Justice Anthony Kennedy caught the essence of the issue separating Justices. The Wall Street Journal noted in their report, Justice Stevens’s dissent argued that Congress wasn't taking action to memorialize veterans, but rather using their memory to justify maintenance of a religious symbol. He noted that the Mojave cross little resembles the prominent and nonsectarian markers erected for those who served in World War II, Korea or Vietnam. 4

  • Peter Eliasberg, managing attorney and Manheim Family Attorney for First Amendment Rights for the ACLU of Southern California, who argued the case for the plaintiffs. He said:

"Although we're disappointed by today's decision, we're encouraged that the case is not over. We will continue to argue that the land transfer did not remedy the violation of the Establishment Clause.

"The cross is unquestionably a sectarian symbol, and it is wrong for the government to make such a deliberate effort to maintain it as a national memorial.

"It's worth noting that seven members of the Court rejected the government's argument that Frank Buono had no right to challenge the land transfer. In addition, the scope of the decision is narrowed by language that ties it to the history of this particular cross and Congress's response to it." 5

  • According to the Catholic News Agency (CNS):

"The Becket Fund for Religious Liberty, which filed an amicus curiae brief in the case, praised the ruling. 'The Court’s ruling is simple common sense: Americans can say what they want about religion on their own property—even if others disagree,' said Eric Rassbach, National Litigation Director of the Becket Fund. 'A cross on private property does not establish a state religion'."
Rassbach explained that the case has broad implications for the display of religious symbols around the country. 'Stripping this country of religious references would turn national monuments like Arlington Cemetery and the Lincoln Memorial into Swiss cheese. The First Amendment guarantees the right to speak and believe freely; it does not give busybodies the right to cut down religious symbols they don’t like'." 6

Webmaster note: Rassbach apparently is referring to the small religious symbols --Christian, Jewish, Muslim, Wiccan, etc. -- engraved on individual soldiers' grave markers. There is little fear that such symbols would ever be erased; they are protected by the Free Exercise clause in the First Amendment of the U.S. Constitution. It is very surprising that he does not seem to be aware of that.

The author/compiler of this essay posted the following comment on the Catholic News Agency website:

"The Roman Cross has many meanings for different people. To many Jews, Roma, Native Americans, Muslims, etc, it recalls instances of mass murders, pogroms and even genocide at the hands of Christians -- the most recent being the genocide primarily by Bosnian Orthodox against Muslims in Bosnia Herzegovina during the 1990s."

"Nobody seems to have suggested the obvious solution that would be unifying in place of divisive: The cross does very well to recognize the sacrifice of the Christian military fallen. But why not supplement the cross with a group of religious and secular symbols to recognize the sacrifice of Agnostics, Atheists, Buddhists, Hindus, Jews, Muslims, followers of other faiths, and of none."

"Try unification instead of division." 6

The posting is subject to censorship.

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Cross stolen:

Some person or group removed the cross on or about 2010-MAY-10. Its present location is unknown. Since it is basically two pieces of pipe welded together, it could be be easily hidden or even recycled.

Kelly Shackelford, president of the Liberty Institute, which represents the caretakers of the Mojave Desert War Memorial, said:

"This is an outrage, akin to desecrating people’s graves. It’s a disgraceful attack on the selfless sacrifice of our veterans. We will not rest until this memorial is re-installed." 7

Clarence Hill, national commander of the American Legion stated:

“The American Legion expects whoever is responsible for this vile act to be brought to justice. While the memorial has been attacked, the fight will continue to ensure that veterans memorials will remain sacrosanct."

Veterans of Foreign Wars' (VFW) National Commander Thomas J. Tradewell Sr. said:

"To think anyone can rationalize the desecration of a war memorial is sickening, and for them to believe they won’t be apprehended is very naive." 7

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Cross replaced:

The VFW allegedly had a replica of the most recent version of the Mojave Cross. They used it to replaced the cross on 2010-MAY-19. The National Park Service then set about to measure the cross' dimensions. They know the precise dimensions of the stolen cross because they had enclosed in with wooden boxes in past years.

According to Fox News:

"Sources told FoxNews.com that the Park Service will allow it to remain standing only if it is the original; if it is a replica, they will remove it. ... Wanda Sandoz, who has watched over the site with her husband Henry since 1984, said the one put in place Wednesday night is not the one welded by her husband. ... A $125,000 reward has been offered for information leading to the arrest of the thieves who took the memorial."

It seems that one person could not have removed the cross. If a group is involved, then the chances of catching them is greatly increased.


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

  1. Text of the ruling is at: http://www.supremecourt.gov/ This is a PDF file
  2. Peter Menkin, "U.S. Supreme Court says Mojave Desert Cross can stay--it is a War Memorial," Examiner.com, 2010-MAY-07, at: http://www.examiner.com/
  3. AllahPundit, "Supreme Court: The Mojave desert cross can stay," Hot Air, 2010-APR-28, at: http://hotair.com/
  4. "Religious Affiliation of the U.S. Supreme Court," Adherents.com, at: http://www.adherents.com/
  5. "Supreme Court Sends Mojave Desert Cross Case Back To Lower Court," American Civil Liberties Union, 2010-APR-28, at: http://www.aclu.org
  6. "Supreme Court rules Mojave Desert Cross can stay," CNA/EWTN News, 2010-APR-28, at: http://www.catholicnewsagency.com/
  7. JoAnne Thomas, "Mojave Desert Cross Stolen, Vandal’s Defy Supreme Court Ruling," RightJuris.com, 2010-MAYT-11, at: http://law.rightpundits.com/
  8. "Mojave Cross Replaced Overnight, but Officials May Tear It Down." Fox News, 2010-MAY-2010, at: http://aipnews.com/

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

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