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Supreme Court overturns objection to cross on public land

By Robert Barnes
Washington Post Staff Writer
Thursday, April 29, 2010; A01

A splintered Supreme Court displayed its deep divisions over the separation of church and state Wednesday, with the court's prevailing conservatives signaling a broader openness to the idea that the Constitution does not require the removal of religious symbols from public land.

A 5 to 4 decision by the court overturns a federal judge's objection to a white cross erected more than 75 years ago on a stretch of the Mojave Desert to honor the dead of World War I.

Six justices explained their reasoning in writing, often using stirring rhetoric or emotional images of sacrifice and faith to describe how religion can both honor the nation's dead and divide a pluralistic nation.

The bottom line, Justice Anthony M. Kennedy wrote, is that "the Constitution does not oblige government to avoid any public acknowledgment of religion's role in society." Although joined in full only by Chief Justice John G. Roberts Jr., Kennedy's opinion will be closely parsed as courts across the country consider challenges to religious displays in public settings.

But it is a narrow ruling, offering less guidance for the future than a stark acknowledgment of the fundamental differences between the court's most consistent conservatives and its liberals in drawing the line between government accommodation of religion versus an endorsement of religion.

To Kennedy, the cross "is not merely a reaffirmation of Christian beliefs" but a symbol "often used to honor and respect" heroism.

He added: "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."

Dissenting Justice John Paul Stevens said: "The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith."

Still, despite strong language in Kennedy's opinion, the decision did little to clarify the court's murky jurisprudence about how government can accommodate religious symbols without violating the Constitution's prohibition on the endorsement of religion. It seems likely that once the legal battles are over, the 6 1/2 -foot cross standing atop an outcropping called Sunrise Rock will remain, although that was not settled by the decision.

The five most consistently conservative justices seem tolerant, based on Wednesday's decision and past rulings, of religious symbols on public land, but the court's four liberals seem deeply skeptical. The lineup does not bode well for other challenges to religious symbols, such as San Diego's 29-foot cross and war memorial on Mount Soledad.

But even the five who agreed Wednesday to return the case to lower courts split three ways in their reasoning.

"To date, the court's jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules," Kennedy wrote.

The court battle began when Frank Buono, a former employee in the 1.6 million-acre Mojave National Preserve, objected to the cross being on a plot of public land. Federal courts in California agreed the display was unconstitutional. But after an outcry from veterans groups, Congress forbade removal of the cross. It declared the site a national monument and engineered a plan to swap the land on which the cross was bolted for a piece of private land nearby so that the cross was no longer on public property.

The courts objected to that as well. But it was a mistake, Kennedy wrote, to dismiss Congress's intent in the land swap as "illicit." His opinion returns the case to the lower court, with a strong nudge to approve it.

"The land-transfer statute embodies Congress's legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views," he wrote.

Justice Samuel A. Alito Jr. would have gone further than Kennedy and Roberts and held that the land swap was lawful and that there is no need to send the case back to the lower court.

Justices Antonin Scalia and Clarence Thomas went along with only the outcome of the case. They said they thought that Buono should not have been allowed to challenge the congressional action and did not endorse Kennedy's reasoning.

The court's liberal wing dissented.

"I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message," wrote Stevens, who was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Justice Stephen G. Breyer dissented for other reasons.

The cross was originally erected at Sunrise Rock by a group of World War I veterans who used to gather at the spot socially. It has been replaced several times, most recently in 1998 by Henry Sandoz, who with his wife, Wanda, maintains what is now a 6 1/2 -foot cross built of metal pipes.

As a result of the court battles, the cross is covered with a plywood box.

Both sides of the dispute noted the inconclusiveness of the decision. "It's a win, but it's a win in a battle, not the decisive victory we might have hoped for," said Hiram Sasser, a lawyer at the Liberty Institute, which represented the Sandozes. "I told Henry that the plywood will eventually come down, but it's going to take a while."

Peter Eliasberg, managing attorney for the American Civil Liberties Union of Southern California, which represented Buono, said that the fight will be uphill but that it is not over.

"We will continue to argue that the land transfer did not remedy the violation of the establishment clause," Eliasberg said. "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."

The case is Salazar v. Buono.

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