TOPICS > Politics

Supreme Court to Hear Case Concerning Cross on Public Land

BY Carolyn O'Hara  October 7, 2009 at 12:00 AM EDT

Supremem Court; file photo

The eight-foot cross deep in the remote Mojave National Preserve was erected in 1934 by the Veterans of Foreign Wars as a monument to fallen U.S. soldiers. Since then, it has been replaced several times.

In 1999, the National Park Service denied a request to place a Buddhist shrine in the area. A former employee of the National Park Service then sued, saying he believed the government was favoring one religion over another.

The retired employee, Frank Buono, is a practicing Roman Catholic, but says he was disturbed that the symbol was on public land.

“It’s one thing to have crosses in one’s house or in one’s churches, but another to have one permanently affixed to land that belonged to everyone,” Buono told NPR.

Buono took his concerns to the park service, which agreed to take the cross down. But Congress stepped in to prevent the removal. Buono then took the case to court, and two lower courts sided with him – ruling that the presence of the cross was essentially a government endorsement of one religion over another.

Congress then intervened again, prohibiting the Park Service from spending money to remove the cross, designating the cross a national memorial akin to the Washington Monument or the Lincoln Memorial , and then transferring the land to private ownership.

In 2004, the 9th U.S. Court of Appeals ruled again in Buono’s favor, writing in its decision to invalidate the land transfer that “carving out a tiny parcel of property in the midst of this vast preserve — like a doughnut hole with the cross atop it — will do nothing to minimize the impermissible governmental endorsement” of the religious symbol.

Veterans groups are on both sides of the issue, but the Veterans of Foreign Wars contend that if the Supreme Court rules against the cross, other memorials across the country, such as crosses at Arlington Cemetery, could also be at risk. Lawyers with the American Civil Liberties Union, which is representing Buono, respond by arguing that because Arlington cemetery offers dozens of religious symbols for headstones, the contention of religious favoritism is simply not as acute as the cross in the Mojave National Preserve.

The Supreme Court may first tackle the thorny technical question of just who has standing to bring challenges to the placement of religious symbols on public land. Solicitor General Elena Kagan wrote in an appeal to the Court that Mr. Buono lacks legal standing to bring an establishment-clause challenge because he does not object to the cross itself. Instead, his contention is that the government should allow other symbols to be displayed near the cross.

In addition, the government contends that the federal courts incorrectly weighed in on the issue after the land swap to private hands, which it argues rendered the government endorsement issue moot.