The Supreme Court joined in a fight between the ACLU and the federal government over a World War I memorial in the shape of a cross. While neither legal team hit the ball over the fence, the majority seems inclined to save this cross in what will be the first religious liberty case of the new Court.
On Oct. 7, the Supreme Court heard arguments in Salazar v. Buono. This case is a decade-long fight over the so-called Mojave cross, pitting Obama Solicitor General Elena Kagan against the ACLU’s Peter Eliasberg. (This doesn’t mean Barack Obama necessarily wants to protect this cross. His Justice Department has the duty of protecting every federal law, regardless of what he and his staff think of those laws.)
In 1934, the Veterans of Foreign Wars (VFW) erected a cross on Sunrise Rock in the Mojave Desert as a memorial to all those who served in World War I, along with a plaque dedicating it to those servicemen.
This cross in the middle of the desert also happens to be in the middle of a national park. Congress created the Mojave National Preserve in 1994, the land of which includes the cross on Sunrise Rock.
Not surprisingly, the American Civil Liberties Union (ACLU) decided that the war memorial constituted a grave threat to the republic. So they backed a former National Park Service employee, Frank Buono, to bring a lawsuit to have the cross removed.
This lawsuit has gone through four rounds of litigation, at the end of which the U.S. Court of Appeals for the Ninth Circuit (the most liberal federal appellate court, thanks to a heavy concentration of judges appointed by Democratic presidents Jimmy Carter and Bill Clinton) upheld a district court order requiring the cross to be taken down.
Then Congress and the Bush administration devised what everyone thought was a solution. The VFW owned a plot of private land adjoining the national park. So the VFW agreed to donate a parcel of land of equal value to the parcel containing the cross, and take the land with the cross in exchange. This would be a land swap deal with no loss to the American taxpayer. The matter seemed solved.
Except that the ACLU doesn’t know how to take “yes” for an answer. They promptly scurried back to federal court and secured a second court order blocking the land transfer, opining that Congress’ move was an effort to evade the court’s earlier order. They did this to keep the cross on government land so that it would have to be destroyed. In so doing, the ACLU showed that their goal all along was not getting the cross off public land; it was instead to level the cross to the ground.
Then the U.S. Supreme Court took this case. Much of the Oct. 7 argument focused on procedural issues and questions of federal jurisdiction. Most of this was about whether Frank Buono had standing to continue this suit in federal court. To have standing, Buono must prove that he has suffered an injury that is traceable to the government and that the Court can remedy. Central to this question is whether the second order blocking the land transfer is part of the original judgment, or instead is a separate legal action.
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