The 12-year running Constitutional battle over a veterans group’s use of a Christian symbol to honor war dead at Sunrise Rock in the Mojave National Preserve was settled on April 23.
The California Veterans of Foreign Wars and the American Civil Liberties Union reached a settlement that was endorsed by U.S. District Judge Robert Timlin that will allow the Mojave Cross to return to its original site by having the National Park Service transfer title for the one-acre parcel where the cross was formerly mounted to the Barstow Chapter of the Veterans of Foreign Wars in exchange for five acres of donated land.
In 2001 the American Civil Liberties Union filed a lawsuit on behalf of then-assistant superintendent of the preserve Frank Buono, a Vietnam veteran who argued that the Christian religious symbol was unconstitutionally located on government land.
A practicing Catholic, Buono despite his own religious faith objected to the presence of the cross on public land, saying he did not think it proper for any religious symbol to be displayed on government property.
Buono’s case cut a tortuous path through federal courts, where it was twice ordered that the cross be removed. Shortly after a federal court ordered the removal of the cross the first time, Congressman Jerry Lewis, in an effort to circumvent the court’s authority, arranged a land transfer in legislation he had passed in 2003, by which the five acres of privately owned property was delivered to the federal government in exchange for the acre beneath and surrounding the cross being given to the Veterans of Foreign Wars. That legislative solution was indistinguishable from the land exchange at the heart of the settlement reached this week.
Further legal challenges prevented that legislation from being actuated. Lower federal courts in California ruled that deeding the land to make it private through such a transfer approved by Congress did not separate the religious from the governmental. In 2007 the 9th U.S. Circuit Court of Appeals held that “carving out a tiny parcel of property in the midst of this vast preserve — like a donut hole with the cross atop it — will do nothing to minimize the impermissible governmental endorsement” of a religious symbol.
When the case finally reached the nation’s highest legal authority, the U.S. Supreme Court in 2010 undid that standard, stating such a land swap if codified through legislation would suffice. In writing his opinion for the ruling majority on the Supreme Court, Justice Anthony Kennedy noted that the government, faced with an injunction to remove the memorial, had been put in a difficult position. The transfer of land was a reasonable solution, Kennedy said, writing that the government “could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those the cross was seen as honoring.”
Nevertheless, the decision to allow the cross to stay was a divided one, reflected in the 5-4 outcome on the issue among the justices. In the decision overturning the past rulings by lesser courts to the effect that the cross had to be taken down, Kennedy asserted for the majority that the memorial, even though it is in the form of a cross which alludes to the crucifixion of Jesus Christ, was originally intended to serve as a war memorial, and was not meant as a religious icon.
The American Civil Liberties Union opposed the land transfer on other grounds, but this week the settelment was brought before Timlin, who signed off on it.
Erected in the 1934 by a group of veterans of what was then known as the Great War as a tribute to their colleagues who had fallen in World War I, the cross seven decades later became a lightning rod of controversy because of its religious significance. While some saw it as a symbol intended to honor soldiers who had made the ultimate sacrifice on behalf of their country, others saw in it a reference to Christianity. The presence of a patently religious symbol on public land, it was argued, violated the spirit and letter of the U.S. Constitution and the ideal of not blurring the distinction between Caesar and God.
The five acres to be traded for the monument site were donated to the Veterans of Foreign Wars by Henry and Wanda Sandoz of Yucca Valley.
The one-acre parcel surrounding the original site of the cross encompasses Sunrise Rock, in the community of Cima, roughly 12 miles south of Interstate 15 in the 1.6 million acre Mojave National Preserve, which was dedicated as a park in 1994. The transformation of the property into public land eventually led to the legal action.