Legal Clash Over a Cross in the Wilderness

Thursday, October 8, 2009

SINCE 1934, a cross commemorating fallen World War I soldiers has stood sentry over the Joshua trees in what is now the Mojave National Preserve. The structure, which was erected by the Veterans of Foreign Wars, went largely unnoticed during its first 65 years, but has for the past decade been the focal point of an often messy dispute over the government's decision to allow the symbol on federal lands. The Supreme Court took up the controversy Wednesday.

The issue dates to 1999, when the federal government rejected a request by a Buddhist group to erect a shrine near the cross; the government stated at the time its intention of removing the cross. Congress reacted by forbidding the use of federal funds to take down the cross and followed up the next year by designating the structure and immediately surrounding property a national memorial in honor of the war dead.

That didn't sit well with Frank Buono, an Oregon resident and a former assistant superintendent at the reserve. Mr. Buono challenged the cross's placement on federal land, claiming that it violated the First Amendment's directive that "Congress shall make no law respecting an establishment of religion." A federal trial judge ordered the removal of the cross after concluding that the government's approach improperly "advances religion."

Congress shot back by agreeing to give the VFW the one-acre parcel around the cross in exchange for a separate parcel of private property within the preserve. (Of the 1.6 million acres in the preserve, roughly 86,000 acres are private.) The justices are being asked to decide whether Mr. Buono had the right to bring the challenge in the first place and, if so, whether the land swap solves the church-state problem posed by the cross.

In our view, the original question -- did the presence of the cross on federal law run foul of the First Amendment -- is not so clear. The government should not be in the business of favoring one religion over another, and we would object to a move today to create permanent displays of crosses or any other religious symbols on public lands. Yet the Mojave cross, erected as it was to honor the war dead, seems in context more a historical marker of a bygone era than a government embrace of a particular faith.

But if the cross doesn't belong on federal land, the swap proposed by the government won't cure the problem. Transfer to the VFW clearly favors one group by shutting out others from a chance to own the property. It favors the cross, too, because the terms of the deal call for the government to reclaim the parcel if the VFW fails to maintain it as a public memorial. The swap seems more of a ruse to avert a federal court order than a principled solution.

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