Video: Court: Mojave cross can stay

  1. Closed captioning of: Court: Mojave cross can stay

    >> kauffman joins me live.

    >>> the world war i memorial has been the center of a legal debate , because some view it as a religious symbol , and that's a point the u.s. veterans counter.

    >> this memorial is not a cross in the religious sense. it was not erected as a cross. it is no more religious than the second highest medal for bravery . the distinguished service cross .

    >> nbc news justice correspondent pete williams is here to explain the ruling and the highly controversy cal case. hi, pete .

    >> reporter: on a blustery day here in washington , very strong tory for the vfw , the justice anthony kennedy , who wrote the supreme court 's pin says the government doesn't need to go around eradicating any cross on public land . very often, he said, crosses on public land don't have primarily a religious significance. they are often meant to honor people who have made sacrifices to the nation. confer, for example crosses along a highway to honor a state trooper who died in service to his state . so we have very strong language from justice kennedy which could well make it hazarder in the future for people to challenge crosses that are put up on public land . a lower court will have to work out details of what congress wants to do, which is to sell the land directly under that cross to the vfw , so there will be no question of church/ state separation, but even that land sale was challenged by a former xwroiees of the preserve in southern california where the cross has stood for 76 years. he said the problem with the cross is that it's primarily a christian symbol and fails to honor those people who fought and died who were not cristance or instead not even believers, but the supreme court swept that aside today, and it's a very strong ruling for the vfw .

updated 4/28/2010 4:32:55 PM ET 2010-04-28T20:32:55

The Supreme Court's conservative majority signaled a greater willingness to allow religious symbols on public land Wednesday, a stance that could have important implications for future church-state disputes.

By a 5-4 vote, the court refused to order the removal of a congressionally endorsed war memorial cross from its longtime home atop a remote rocky outcropping in California's Mohave Desert.

The court directed a federal judge to look again at Congress' plan to transfer the patch of U.S. land beneath the 7-foot-tall cross made of metal pipe to private ownership.

Federal courts had rejected the land transfer as insufficient to eliminate constitutional concern about a religious symbol on public land — in this case in the Mojave National Preserve.

While the holding Wednesday was narrow, the language of the justices in the majority, and particularly the opinion of Anthony Kennedy, suggested a more permissive view of religious symbols on public land in future cases.

At least two other cross cases
Federal courts currently are weighing at least two other cross cases, a 29-foot cross and war memorial on Mt. Soledad in San Diego and Utah's use of 12-foot-high crosses on roadside memorials honoring fallen highway patrol troopers.

"The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society," wrote Kennedy, who usually is in the court's center on church-state issues.

Speaking of the Christian cross in particular, Kennedy said it is wrong to view it merely as a religious symbol. "Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten," he said.

In dissent, Justice John Paul Stevens agreed that soldiers who died in battle deserve a memorial to their service. But the government "cannot lawfully do so by continued endorsement of a starkly sectarian message," Stevens said.

The cross has stood on Sunrise Rock in the 1.6 million-acre Mojave preserve since 1934, put there by the Veterans of Foreign Wars as a memorial to World War I dead. It has been covered with plywood for the past several years following the court rulings.

Justice Samuel Alito, part of Wednesday's majority, noted the remoteness of the location. "At least until this litigation, it is likely that the cross was seen by more rattlesnakes than humans," Alito said, although he also pointed out that Easter services have long been held there.

The controversy began when a retired National Park Service employee, Frank Buono, filed a lawsuit complaining about the cross on public land. Federal courts sided with Buono and ordered the cross' removal.

In 2003, Congress stepped in and transferred the land where the cross stands to private hands to address the court rulings. But the courts said the land transfer was, in effect, an unacceptable end run around the constitutional problem.

In Wednesday's case, six justices wrote separate opinions and none spoke for a majority of the court.

‘The veterans consider that a disgrace’
But supporters of the cross memorials were pleased with Kennedy's language, especially because Alito and Justices Antonin Scalia and Clarence Thomas would have gone further. Chief Justice John Roberts signed onto Kennedy's opinion.

"We know this is just the beginning. Until that box comes off that veterans' memorial, the veterans consider that a disgrace," said Kelly Shackelford, chief counsel at the conservative Liberty Legal Institute in Plano, Texas. He wrote a brief for several veterans' groups.

"We hope that some of the statements of Justice Kennedy go to the bigger issue, attacks on any veterans memorial that has any sort of religious imagery," Shackelford said.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, called the court's reasoning "bogus."

"It's alarming that the high court continues to undermine the separation of church and state. Nothing good can come from this trend," Lynn said. "The court majority seems to think the cross is not always a Christian symbol. I think all Americans know better than that."

Muslim and Jewish war veteran groups complained in court papers that they view the Mojave cross as a religious symbol that excludes them. The Jewish War Veterans called the cross "a powerful Christian symbol" and "not a symbol of any other religion."

Stevens largely agreed. He called the Mojave cross a "dramatically inadequate and inappropriate tribute." Justices Ruth Bader Ginsburg and Sonia Sotomayor joined his opinion, while Justice Stephen Breyer also dissented.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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