Religion News Service

WASHINGTON (RNS) Does an offended observer who drives by a cross-shaped war memorial in the middle of the desert have a right to call for its removal?
And can that 7-foot cross stand without violating the constitution's prohibition of government establishment of religion?

The Supreme Court will consider those questions in the case of a cross-shaped World War I memorial that sits in California's Mojave National Preserve when it hears arguments on Wednesday, Oct. 7.

Church-state separationists are watching closely, along with veterans organizations concerned about how they are represented by memorials -- and whether the case could lead to removal of other monuments.

The case has landed in the high court's hands eight years after Frank Buono, a former assistant superintendent of the preserve, first filed suit, saying he was offended that other religions beyond his own Christian faith were not represented near the memorial site.

As Buono's case wound its way through the courts, Congress passed laws preventing its removal, naming it a national memorial and, lastly, calling for a transfer of the surrounding property to the private ownership of the Veterans of Foreign Wars, who first erected it in 1934.

In the government's eyes, the transfer resolved the matter in a “sensible” and constitutional manner.

“In urging this Court to destroy long-standing memorials across this nation or else place them on the auction block, (Buono) seeks not neutrality, but hostility toward religion,” argued Solicitor General Elena Kagan, in a brief submitted to the court.

The American Civil Liberties Union, which is representing Buono, said the transfer is insufficient, in part because the cross remains a national memorial even if it is on private land.

“As one of the few displays that Congress has designated a national memorial, the cross necessarily will reflect continued government association with the pre-eminent symbol of Christianity,” argued Peter Eliasberg of the ACLU Foundation of Southern California, in the ACLU's brief before the high court.

The ACLU suggests a “neutral transfer to a private party” could undo what it considers “favoritism” to the VFW.

Beyond the Veterans of Foreign Wars, a number of other veterans groups have weighed in, including Muslim veterans organizations in a rare appeal to the high court. Douglas Laycock, a University of Michigan Law School professor of constitutional law, filed a brief on their behalf that says a “government-sponsored cross plainly takes sides between faiths.”
They note that they're not seeking removal “of all crosses from government cemeteries,” but they want government neutrality.

“They don't want to take anything away from the Christians but they don't want to be ignored either,” Laycock said in an interview. “They're over there dying for the country, too.”

Jewish War Veterans of the United States of America, likewise, said the current remedy continues to send a government-endorsed “message that non-Christian veterans are outsiders undeserving of their nation's praise.”

Kelly Shackelford, chief counsel of Liberty Legal Institute and an attorney representing the VFW and the American Legion, said individual Jewish veterans have sent him letters of support as he works to maintain the cross.

“The cross was put up by World War I veterans, some of whom weren't religious at all,” he said, noting that the memorial had a plaque that said it was dedicated to the “Dead of all Wars,” which was later torn down by vandals.

Shackelford said the symbol has long referred to sacrifice and he worries that crosses elsewhere -- such as the Argonne Cross at Arlington National Cemetery -- will be in danger if the Mojave Cross is ordered taken down.

Beyond the church-state arguments and the questions from veterans, the case could hinge on whether the high court thinks Buono has the standing to sue. Buono first raised concerns after the National Park Service rejected a request to place a Buddhist monument near the memorial.

K. Hollyn Hollman, general counsel of the Baptist Joint Committee, said it may be easier to grasp an atheist or Jew questioning a Christian symbol, but Christians, including Buono, care about government neutrality, too.

“It's important for us as Christians to think, `Do you want to have government playing a role in promoting religion' or `Are we better off when government is more neutral toward religion?”' she said. “We fear that this court might do further damage to standing doctrine, making it even harder to bring Establishment Clause cases.”

Until the high court rules, the cross sits atop an outcropping called Sunrise Rock, encased in plywood.