(Photo: AP / Liberty Legal Institute, Henry and Wanda Sandoz)This undated photo shows the Mojave War Memorial cross on an outcrop known as Sunrise Rock in the Mojave National Preserve.
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The Supreme Court ruled Wednesday that the 75-year-old war memorial cross in the Mojave Desert of California can remain in place.
In a splintered 5-4 ruling, the justices said “the constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.” They also said the lower courts did not take enough consideration to the fact that the government has decided to transfer the land where the cross is erected to private ownership.
Congress had authorized in 2004 the transfer of the one acre of land under the cross to the Veterans of Foreign Wars in exchange for five acres of land elsewhere to avoid constitutional concern regarding religious symbols on public land.
“Passive displays like the World War I Memorial, the Ten Commandments, Nativity scenes, or statements like the National Motto do not force anyone to participate in a religious exercise and, thus, do not establish religion,” commented Mathew Staver, founder of Liberty Counsel, in response to the high court’s ruling.
“It (Mojave cross) stood as a memorial to the heroes of World War I,” he added. “Removing this memorial would be an insult to our war veterans.”
The VFW, a private organization, erected the 8-foot cross in 1934 with a plaque stating, “The Cross, Erected in Memory of the Dead of All Wars.” Another plaque read, “Erected 1934 by Members of Veterans of Foreign Wars, Death Valley Post 2884.”
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In 2001, the American Civil Liberties Union filed a lawsuit on behalf of Frank Buono, a former National Park Services employee, against the Mojave Desert memorial. A 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 cross has been covered in a plywood box since 2002.
While the Supreme Court overall supported the decision that the cross stay, six of the nine justices wrote separate opinions about the Salazar v. Buono case.
Justice Anthony M. Kennedy announced the court’s decision and gave his opinion, which Chief Justice John Roberts Jr., and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. agreed with in part. All but Thomas wrote separately.
Justice John Paul Stevens dissented along with Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer, for various reasons.
“Americans want memorials to our nations’ fallen heroes protected,” said ADF Senior Counsel Jordan Lorence, in a statement. “Congress was doing just that when it transferred the land under this memorial to the veterans’ group that cares for it.”
ADF and Liberty Legal Institute are among the organizations involved in the Defense of Veterans’ Memorials Project that seeks to defend America’s veterans’ memorials in the courtroom.
