The Supreme Court heard arguments Wednesday regarding a seven-foot cross on government-owned ground that has been covered for the past seven years due to its alleged violation of the Establishment Clause.
Though debate over the Mojave Desert memorial was at times heated, it seemed unlikely by the end of the hearing that the cross will have to come down permanently as the District Court and the U.S. Court of Appeals for the Ninth Circuit had ordered for it to be.
Liberal Justice Ruth Bader Ginsburg indicated, and American Civil Liberties Union (ACLU) lawyer Peter Eliasberg agreed, that even if the court finds problems with Congress’ decision to transfer the land on which the cross sits to private ownership, lawmakers probably could find a valid way to sell or give the land to veterans groups.
Ginsberg offered a hypothetical solution for the government, suggesting the government could remove the cross, then sell the land back to the Veterans of Foreign Wars, which originally built the memorial 75 years ago.
“Then we are talking about something that is rather formal rather than substantial,” Ginsberg said, according to CNN.
Eight years ago, the ACLU filed a lawsuit on behalf of Frank Buono, a former National Park Services employee, against the Mojave Desert memorial erected atop an outcropping in the Mojave National Preserve.
Congress made attempts to designate the cross as a national memorial and to transfer one acre of land that included the memorial to the VFW. But the District Court and the U.S. Court of Appeals for the Ninth Circuit ruled that the cross and the land transfer violated the Establishment Clause and ordered it removed.
The case, Salazar v. Buono, is being watched closely by church-state separationists and veterans organizations concerned about how they are represented by memorials and whether the case could lead to removal of others.
But legal experts say rather than focusing on separation of church and state, the case appears to boil down to the matter of land transfer.
So far, the conservative justices seemed open to the Obama administration's argument that Congress' decision to transfer to private ownership the land on which the cross sits eliminates any Establishment Clause violation.
"Isn't that a sensible interpretation" of a federal court injunction banning the display on government property, Justice Samuel Alito asked.
The liberal justices, on the other hand, indicated that they agree with a federal appeals court that ruled that the land transfer was a sort of end-run around the First Amendment prohibition against government endorsement of religion.
Justice Anthony Kennedy, often the decisive vote in these cases, said nothing to suggest where he might stand.
The U.S. Supreme Court is expected to deliver a decision in following months.