WASHINGTON – The Supreme Court said Wednesday that a lower court went too far in ordering the removal of a congressionally endorsed war memorial cross from its longtime home atop a remote outcropping in California.
Signaling support for keeping the cross, the justices ordered the federal court in California to look again at Congress’ plan to transfer a patch of federal land beneath it into private hands.
The lower court had barred the land transfer as insufficient to eliminate concern about a religious symbol on public land – in this case, the Mojave National Preserve.
The ruling was 5-4, with the court’s conservatives in the majority.
The VFW erected the large cross in the federal preserve more than 75 years ago.
It has been covered with plywood for the past several years following the court rulings. Court papers describe the cross as 5 feet to 8 feet tall.
“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,” Justice Anthony Kennedy wrote.
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.
Six justices wrote separate opinions and none spoke for a majority of the court. The holding itself was narrow, ordering lower courts to look again at the transfer of land from the government to private control.
Lower federal courts previously ruled that the cross’ location on public land violated the Constitution and that the land transfer was, in effect, an end run around the constitutional problem.
Kennedy, who usually is in the court’s center on church-state issues, suggested there may have been no problem in the first place.
“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” Kennedy said.
Justices Samuel Alito, Antonin Scalia and Clarence Thomas would have gone further than Kennedy and Chief Justice John Roberts, who joined Kennedy’s opinion.
Alito said he would allow the land transfer, barred until now, to take effect. Scalia and Thomas said they would not even have allowed the former National Park Service employee who complained about the cross to bring his objection to the transfer into court.
Roberts took a decidedly commonsensical approach to the matter. At the argument in October, a lawyer argued there probably would be no objection if the government took down the cross, sold the land to the VFW, and gave the VFW the cross to immediately erect again.
“I do not see how it can make a difference for the government to skip that empty ritual and do what Congress told it to do – sell the land with the cross on it,” Roberts said.
Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor also dissented.
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