The High Court

If there's no cross, is there still a case?

By Robert Barnes
Washington Post Staff Writer
Monday, August 23, 2010

The Supreme Court's decision this spring in favor of a little white cross on a lonely stretch of the federally owned Mojave National Preserve was never a model of clarity.

There was plenty of stirring rhetoric. "Here, one Latin cross in the desert evokes far more than religion," wrote Justice Anthony M. Kennedy. "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."

Replied dissenting Justice John Paul Stevens: "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."

But in the end, six of the nine justices wrote their own explanations of how the First Amendment case should be decided. The best they could do to stitch together a 5-to-4 majority was to indicate the cross should stand, suggest Congress's land-swap plan for dealing with the problem of a religious symbol on public land was reasonable and send the whole thing back to the lower courts for more work.

It got even more complicated after that.

The cross, a version of which has sat atop Sunrise Rock since World War I veterans erected it more than 75 years ago as a memorial, disappeared May 9. Nothing but bolts remained where the 6 1/2 -foot cross, made of welded white pipes, once stood.

It was back in place 11 days later. But National Park Service rangers determined it was a replica, not the one at the heart of the controversy. They were advised to take it down by Justice Department lawyers, who said a lower court's decision that the cross was an unconstitutional display of religion on public land was still in effect, despite the Supreme Court's action.

There's been a mysterious e-mail to the Desert Dispatch in nearby Barstow, Calif., that the cross was removed "lovingly and with great care" by a person or persons who objected to the Supreme Court decision. Kennedy "desecrated and marginalized the memory and sacrifice of all those non-Christians who died in WWI," the e-mail said.

Veterans groups have offered a $125,000 reward for information about the theft; so far, there have been no credible leads, said ranger Linda Slater. And the groups have asked President Obama to reverse the Justice Department and allow a new cross to be erected, even if it has to be covered once again by a plywood box while the litigation continues.

"It is in your power to direct the National Park Service and the Department of Justice to immediately restore the Memorial," the groups wrote to Obama in June. "And, on behalf of our nation's veterans, we humbly ask you to do so, as Commander in Chief and as the sole officer constitutionally charged to take care that the laws are faithfully executed."

So far, no reply.

All of this raises the legal question: If there's no cross, is there still a case?

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