It was a misty spring morning when James Jubilee found the wooden cross in his front lawn. There was a charred spot where someone had set it on fire.
The symbol of hatred ignited fear in his family. Jubilee, an African American, paced the halls of his Virginia Beach house at night and kept his gun nearby, he said. His wife, Susan, stopped her early-morning walks. When their 8-year-old son went outside for recess, a school employee stayed with him to make sure he was safe.
"We didn't know who did it. We didn't know if it was an organized hate group or just kids. We didn't know if this was a warning that we had to get out or they were going to firebomb our house in the middle of the night," Susan Jubilee recalled.
A month after the May 1998 incident, some teenagers were charged with attempted cross burning. Two of them -- Richard Elliott and Jonathan O'Mara -- were convicted, but they successfully argued before the Virginia Supreme Court that the state's law against cross burning violated their constitutional right to free speech. This week, the U.S. Supreme Court ruled in their case that states can criminalize cross burning if they prove it was meant as a threat and not simply as a symbolic expression.
While the high court's ruling has far-reaching implications for constitutionally protected speech and threatening symbolism, the outcome of O'Mara's and Elliott's cases remains uncertain. The justices found that cross burning can be a crime in some instances but said a provision of the Virginia statute is flawed.
Now the Virginia Supreme Court will be left to sort out what happens to O'Mara and Elliott.
Virginia Attorney General Jerry W. Kilgore (R) will ask the state court to "sever" a portion of the law that makes cross burning, on its face, a threat, and to either reinstate the convictions against O'Mara and Elliott or order that they be given new trials, spokesman Tim Murtaugh said.
Attorneys for the defendants plan to argue that O'Mara and Elliott were convicted under an unconstitutional statute and cannot be retried.
"We expect this to be dismissed upon further review by the Virginia Supreme Court," said Kevin E. Martingayle, a Virginia Beach attorney for O'Mara. "They can't go back and take out part of the statute and have a do-over."
Virginia last year passed a law that probably would pass a constitutional test. The new law makes it illegal to burn anything on private or public property -- it doesn't specifically mention a cross -- with the intent of intimidating someone.
The case dates to a balmy May night in 1998 when O'Mara and Elliott, both 19, were drinking beer and partying with friends, according to court documents. Elliott was annoyed with his new neighbors, the Jubilees, because they had questioned his mother about gunfire they had heard from his backyard shooting range.
The teenagers decided to get back at the Jubilees, the documents say. They nailed together a crude cross, planted it in the Jubilees' front yard, set it on fire and took off, according to court records. The blaze flickered out.
Martingayle doesn't defend what O'Mara and Elliott did but says they didn't understand the fear their actions would cause.
"This was a drunken teenage prank where the people involved had no appreciation for the historical significance of what was going on," Martingayle said. O'Mara is "ashamed of what occurred and that he ever had a role in it."
For James Jubilee, it doesn't matter whether O'Mara and Elliott meant to threaten him. The Jubilees were certain they had been targeted because they are an interracial couple.
Jubilee was leaving for work when he spotted the 2-foot-by 4-foot cross on his lawn. "I had never, ever in my life encountered anything of the sort," he said. "All I knew, from what I had been told, is that when something like that occurred, something worse was coming."
The family was emotionally shattered for the next month, Jubilee said, and their real estate business suffered. Susan Jubilee thought of movies she had seen, with Ku Klux Klan rallies. They had to explain the significance of a burning cross to their son.
King Salim Khalfani, executive director of the Virginia State Conference of the NAACP, said he believes a threat is made every time a cross is burned. "A burning cross has but one use, and that's to intimidate and terrorize people of African American descent," he said.
Despite the uncertainty in the Virginia Beach case, Virginia officials have praised the U.S. Supreme Court decision as a victory. Kilgore called cross burning "nothing short of domestic terrorism." And Gov. Mark R. Warner (D) said the act of burning a cross is "clearly intended to menace and intimidate African Americans."
But David Baugh, a lawyer who represented a Klansman who burned a cross in Virginia, said he worries that such a decision will erode the First Amendment.
"It's a sad reality of the right of free speech that people can say things that make other people upset, even frightened. I believe that I should have the right to say, 'I hate certain people and I think they should die,' as long as it doesn't rise to the level of an imminent threat."
James Jubilee wants O'Mara and Elliott to go to trial again, but even if they don't, he sees progress in the U.S. Supreme Court ruling.
"I'd do it all again to get the results we got," he said. "It's a small step, but a step forward."