Feature Story - June 2010

 

War Memorial Cross Taken in Wake of High Court Ruling

Less than two weeks after the U.S. Supreme Court ruled that a long-standing World War I memorial may stay in California's Mojave National Preserve, while it referred the matter back to a lower court for review, the eight-foot steel-pipe cross was found to be missing. The cross had stood bolted atop Sunrise Rock since 1934. For the past several years, the cross had been encased in plywood, pending a resolution of the legality concerning the transfer of land immediately surrounding the cross from government ownership to private control. The controversy began in 2001 when a retired National Park Service employee filed a federal lawsuit to have the cross removed, after the agency refused to allow the erection of a Buddhist memorial nearby. Congress subsequently approved the land transfer around the cross to the Veterans of Foreign Wars.

However, in 2007, the 9th U.S. Circuit Court of Appeals upheld a federal judge's ruling barring the transfer, calling it an effort to circumvent the First Amendment's Establishment Clause. The decision prohibiting the cross from public land remains in place, while the transfer of the site to the VFW remained under contention.

Ruling on the latter issue in a 5-to-4 decision in April, the U.S. Supreme Court returned the case to the federal court to determine whether "a reasonable person" would think the transfer appeared to be an endorsement of religion. In the event the federal court finds no endorsement of religion, the land transfer will be upheld.

The removal of the cross was condemned by veterans groups and others.

VFW National Commander, Thomas Tradewell, Sr., said, "This was a legal fight that a vandal just made personal to 50 million veterans, military personnel and their families. To think anyone can rationalize the desecration of a war memorial is sickening. The memorial will be rebuilt.

We hope this horrible act will highlight the importance of resolving this case quickly so that the memorial and land can be transferred to the VFW, so that the service and sacrifice of all American war dead will be properly recognized and honored, as originally intended by a group of World War I VFW members 76-years-ago," Tradewell said.

Kelly Shackelford, president and CEO of Liberty Institute, which represents the caretakers of the memorial and several veterans groups, stated, "This is an outrage, akin to desecrating people's graves. It's a disgraceful attack on the selfless sacrifice of our veterans. We will not rest until this memorial is reinstalled."

Alliance Defense Fund, which is jointly involved in a project with the American Legion to defend veterans' memorials across the country, condemned the theft of the Mojave Cross.

ADF Senior Counsel, Joseph Infranco, said, "This is a cowardly and criminal act that dishonors heroes who have given their lives for our country. Those who deny our heritage and religious liberty will not succeed through vandalism under cover of darkness.

What the ACLU could not accomplish in court, intolerant cowards are now trying to do through crime. Tearing down this monument is a criminal act, but it also demonstrates a hostility to the nation's history and the First Amendment," Infranco said.

Lawyer Peter Eliasberg, of the American Civil Liberties Union of Southern California, which sued on behalf of opponents of the cross, maintained that the organization rejects any resort to theft or vandalism.

"We believe in the rule of law and we think the proper way to resolve any controversy about the cross is through the courts," Eliasberg said.

That view was shared by Atheist Alliance International.

AAI President Stuart Bechman, stated, "Damaging, and the taking of another's property, is, of course, reprehensible behavior and not to be condoned. AAI certainly condemns that action.

However, given the controversial nature of this memorial and the tens of thousands of dollars spent in court, we call on all parties to take this unexpected opportunity to consider replacing the monument with a more-inclusive memorial that all Americans can support, and to place that memorial in a more appropriate place that reflects on the soldiers for whom the memorial is to honor," Bechman added.

As for the recent court decision, Justice Anthony Kennedy, who wrote the majority opinion, stated in part, "The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm."

Kennedy continued, "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."

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

In criticizing the ruling, Bob Ritter, legal coordinator of the legal arm of the American Humanist Association, said, "Predictably, five conservative justices on the Supreme Court saw no evil in letting a Christian cross represent all Americans, notwithstanding the fact that the cross is the preeminent symbol of but one religion–Christianity. If this is not ‘an establishment of religion,' I don't know that is."

Likewise, Americans United for Separation of Church and State Executive Director, the Rev. Barry Lynn, said, "The cross is a Christian religious symbol, not a war memorial that honors all veterans. Our veterans come from different faiths, and some follow no spiritual path at all.

The court majority was clearly determined to find any bogus reason to keep this religious symbol in a public park. It's alarming that the high court continues to undermine the separation of church and state. Nothing good can come from this trend.

The court majority seems to think, the cross is not always a Christian symbol. I think all Americans know better than that," Lynn said.

Interfaith Alliance President, Rev. Dr. C. Welton Gaddy, said, the high court's ruling "raises a cluster of worries about the government's treatment of religion and unnecessary entanglement between religion and government."

Gaddy added, "Two sad ironies stand out here. First, for Christians to celebrate this decision requires a will to allow the government to reject the distinct religious value the cross has traditionally held in Christianity. Second, those who have fallen in battle for our country often have done so protecting the rights that are the defining characteristics of our democracy -- and, specifically, our First Amendment. Central to this are our religious liberties–the ones jeopardized in this ruling by the Supreme Court."

American Center for Law & Justice filed a friend-of-the-court brief in the case on behalf of 15 members of Congress.

ACLJ Chief Counsel, Jay Sekulow, said, "The decision is an important one and represents a victory against anti-religious hysteria. We're pleased that the Court has reversed the 9th Circuit and allowed the cross to remain in place. The court has sent a message that the mere existence of a religious symbol in a public place does not create a constitutional crisis."

A similar brief was filed by the Becket Fund for Religious Liberty.

Becket Fund National Litigation Director, Eric Rassbach, stated, "The Court's ruling is simple common sense. Americans should be able to say what they want about religion on their own property–even if others disagree.

It is unfortunate that the Court could not unify around a single rationale for its ruling. Nevertheless, the tea leaves the district court must read, seem pretty clear to me," Rassbach said.

Rev. Rob Schenk, president of Faith and Action, said, "This is a victory for the First Amendment and for the rights of citizens, including veterans, to use meaningful symbols like the cross in public displays. It's not just common sense, it's in keeping with our most cherished beliefs, customs and values."

Dr. Richard Land, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission, was quoted by "Baptist Press" as saying, "This is a good decision that should encourage people of faith about being discriminated against in the public square. But the penalty you pay for having conservative, strict-constructionist judges is, they rule as narrowly as they can.

It is unfortunate the justices returned the case to the lower court, but at least they upheld the right of the cross to remain there," Land said.

Carl Esbeck, a professor at University of Missouri's Law School, told Religion News Service, the narrowness of the ruling is a "mixed blessing."

Esbeck stated, " I'm concerned about the government co-opting the symbol for its own purpose, which, among other things, has a detrimental effect on Evangelistic religion, such as Christianity.

You get people who look at the cross who say, ‘Well, it's just part of American culture.' Well, no, a Christian wants to look at the cross and say, ‘No, that's a symbol of where Christ died for our sins.'"

Liberty Counsel Founder, Mathew Staver, summed up the situation this way.

"Removing the memorial should be an insult to our war veterans. Doing so under the guise of the First Amendment is an insult to the Framers of the Constitution. For now, the cross will remain.

The Constitution should not depend on 5-to-4 votes with fractured opinions. If the courts returned to the original understanding of the Constitution, then these First Amendment religion cases would be easy.

The next justice on the Supreme Court must be committed to upholding the rule of law and the original intent of the Constitution," Staver said.

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