In a very narrow ruling, the World War I memorial shaped like a Latin cross will continue to stand in the Mojave desert. But this was not the victory that conservatives hoped for, and serves as a reminder that the current Supreme Court is a moderate one.
On Wednesday, April 28, the Supreme Court handed down its long-awaited decision in Salazar v. Buono concerning the Mojave cross. A white cross stands atop Sunrise Rock, erected by the Veterans of Foreign Wars (VFW) in 1934, with a plaque dedicating it to those who served and died in World War I. In later years, the land where the cross stands became federal land: the Mojave National Preserve. Predictably, someone who was offended that this lonely cross standing in a desert happened to be in a public park decided to sue—with the help of the ACLU.
In recent years, a court-ordered the cross torn down, and the Ninth Circuit appeals court affirmed that decision. Then the VFW made a deal with the Bush White House and the Republican-led Congress: The VFW owned land adjacent to the federal park, and would make a land swap, taking the acre with the cross, and donating land of equal value back to the park. Therefore, the memorial cross would now be on private land, and the park would receive equal-value land in return. Everyone could claim victory, and go home.
Refusing to take yes for an answer, the plaintiff and the ACLU ran back to court, getting an order stopping the land transfer. They did this to keep the cross on government land, so that it would have to be torn down in a shocking display of blatant hostility to people of faith.
Once again, the Ninth Circuit affirmed this order, so finally the Supreme Court took the case, and heard arguments in October. The Court’s decision this week was a partial victory for the cross and the VFW. The Court held by a 5-4 vote that the cross could stay, for now.
But the Court’s decision was fractured. The controlling opinion, written by moderate Justice Kennedy, joined by Chief Justice Roberts, held that the plaintiff, Frank Buono, still had legal standing to continue this lawsuit, and then sent the case back to the lower court to determine whether a reasonable person would think the land transfer of giving the cross back to the VFW would look like an endorsement of religion. If the court finds no endorsement of religion, then the land swap will finally occur, and the memorial cross will forever be safe.