In writing for the plurality of the court, Justice Anthony Kennedy validated a land transfer designed to give ownership of the land around the cross to a private group, which would keep the cross where it sits in the Mojave National Preserve. The decision reversed decisions by lower courts, which said the presence of the cross on federal land was unconstitutional.
“The land-transfer statute embodies Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views,” Kennedy wrote. Kennedy was joined in concurring opinions by Justices Alito, Roberts, Scalia and Thomas.
In his dissent, retiring Justice John Paul Stevens wrote that the actions by the government would give an observer the impression of support for a religious symbol on public land.
“Particularly important to this analysis is that although the transfer might remove the implicit endorsement that presence on public land signifies, it would not change the fact that the Government has taken several explicit actions to endorse this cross,” Stevens wrote. Justices Breyer, Sotomayor and Ginsburg joined in dissenting.
The small cross has been in the park since in was erected by the Veterans of Foreign Wars in 1934. Frank Buono, a retired park service employee, filed suit in Federal District Court in California, claiming that a cross on federal land violated the establishment clause of the First Amendment to the Constitution.
After the district court issued an injunction in 2002 that said the cross could not sit on federal land and must be dismantled or removed. Instead it was covered with a box. Congress passed a law in 2004 allowing for the land around the cross to be transferred to the Veterans of Foreign Wars.
Buono appealed, arguing that the land transfer was not enough to prevent an appearance of endorsement of a particular religion by the government.