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

By Robert Barnes
Washington Post Staff Writer
Monday, August 23, 2010; A11

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?

"You would hope some vandal could not come in and alter the direction of a case that raises important constitutional issues," said Hiram Sasser, a lawyer at Liberty Institute. His group represents the veterans groups as well as Henry and Wanda Sandoz, who had assumed the role as the cross's caretakers.

Congress had hoped to solve the problem by declaring the desert site a national monument and engineered a plan to swap the land on which the cross stood for a piece of private land nearby so that the cross was no longer on public property.

The lower courts objected to that as well, but Kennedy wrote it was a mistake 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 Congress's action.

Last month, a district judge in Los Angeles gave lawyers 90 days to settle the issue or resume litigation. Peter J. Eliasberg, a lawyer with the American Civil Liberties Union who represents the former park employee who objected to the cross, said talks were underway but would not be specific.

"We've been litigating this for 10 years, and if there's a way to reach agreement," it should be explored, Eliasberg said.

But neither a settlement nor more litigation in the Mojave cross case is likely to settle the Establishment Clause debate that seems particularly divisive to this court. And future cases will reveal the views of Stevens's replacement, Elena Kagan. As solicitor general in last fall's oral arguments in Salazar v. Buono, she defended Congress's actions. Are her own views the same as her then-client's?

There are always more chances. Just last week, a unanimous panel of the U.S. Court of Appeals for the 10th Circuit said Utah's practice of honoring fallen state troopers with 12-foot roadside crosses with their names inscribed was unconstitutional.

Cross supporters there said they are likely to appeal.

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