Mojave Cross — Still Unconstitutional After All These Years

On Thursday the U.S. Court of Appeals for the Ninth Circuit ruled that the huge, honking cross atop Sunrise Rock in the Mojave National Preserve remains an unconstitutional endorsement of religion despite the federal government’s disingenuous efforts to purge the taint by transferring the small chunk of land on which the cross sits to the Veterans of Foreign Wars, a private organization. The case is Buono v. Kempthorne (.pdf, 31 pages).

The Mojave National Preserve is 2,500 square miles of federally owned land in Southern California. The VFW placed a wooden cross on Sunrise Rock in 1934 as a memorial to World War I veterans. The original cross is long gone, and has been replaced by private parties several times over the years. A local resident installed the current cross in 1998. It’s made of metal pipes painted white and is bolted to the rock.

In 1999 someone made a formal request to the National Park Service to place a Buddhist shrine near the cross. NPS denied permission and told the applicant that any attempt to build the shrine would result in citation or arrest. To its credit, the NPS also decided to remove the cross.

Well, the good Christian folk in Congress went apeshit over the latter decision. In 2000 they passed legislation prohibiting the use of federal funds to remove the cross. From that point on, the cross became Congress’ baby.

Frank Buono, a retired NPS employee, filed suit in federal court in 2001 seeking a declaration that the cross’s presence violated the establishment clause. The trial court agreed and in permanently enjoined the government from displaying crosses on Sunrise Rock.

In 2002, while the case was still pending in the district court, some devious bastard in Congress slipped into a defense appropriations bill a provision designating the cross a national memorial honoring American troops who fought in WWI. Congress also appropriated $10,000 to purchase and install replicas of the original cross and plaque placed on the site in 1934 by the VFW.

While the trial judge’s order was on appeal, Congress passed a land transfer under which the government would deed its interest in the small parcel on which the cross sat to the VFW. However, the transfer was conditioned on the land remaining a “war memorial.” If the VFW ever stopped using the land as a “war memorial” — i.e., if they removed the cross — then title reverts to the government. In other words, the VFW received a fee simple subject to complete defeasance on a condition subsequent.

The idea, of course, was to sidestep the district court’s ruling. No government action, no Establishment Clause violation, right?

Well, not quite. The Ninth Circuit affirmed the trial court’s ruling in 2004. The presence of the cross was a painfully obvious endorsement of Christianity. The court of appeals rejected the government’s argument that the land transfer legislation rendered the case moot, since the transfer hadn’t actually taken place. The court reserved for another day the issue of the land transfer’s validity.

The government moved forward with the land transfer, and Mr. Buono filed a motion with the district court for enforcement of the injunction. The judge granted the motion, finding that the land transfer itself “carries an inherently religious message and creates an appearance of honoring only those servicemen of that particular religion is an attempt by the government to evade the permanent injunction enjoining the display of the Latin Cross atop Sunrise Rock.” The judge declared the land transfer legislation invalid, enjoined the government from enforcing it and order the government to comply with the original injunction.

The case then went back to the Ninth Circuit, which ruled on Thursday that the Establishment Clause violation remains despite the land transfer. The court correctly noted that the multiple pieces of legislation Congress passed to save the cross grant the government substantial ongoing control. NPS is responsible for management of war memorials, and the cross remains a war memorial. The land transfer was conditioned on the VFW maintaining the war memorial (read — cross) and provided for reversion of title if the VFW failed to do so. Left intact by the land transfer law was the earlier legislation earmarking $10,000 of public money to install replicas of the original cross and plaque.

Those facts, plus the regular and repeated government efforts to save the cross, mean that the unconstitutional government endorsement of religion continues unabated:

Under the statutory dictates and terms that presently stand, carving out a tiny parcel of property in the midst of this vast Preserve—like a donut hole with the cross atop it—will do nothing to minimize the impermissible governmental endorsement.

Chalk one up for the good guys, at lease for now. There’s still potential en banc and Supreme Court review to worry about.

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