Whether the Sunrise Rock War Memorial will remain standing in the Mojave Desert is now in the hands of a U.S. Supreme Court that appeared divided on the issue during an Oct. 7 hearing.
The nation's highest court heard arguments from both sides of Salazar v. Buono. At stake is whether a Latin cross dedicated to the dead "of all wars" can remain in an isolated area that currently rests on federal land.
U.S. Solicitor General Elena Kagan, arguing on behalf of Interior Secretary Ken Salazar and - among others - The American Legion, said that an attempted land transfer from the U.S. government to the Veterans of Foreign Wars (ordered in the DoD Appropriations Act of 2004) never should have been ruled unconstitutional by the Ninth Circuit Court. The VFW erected the monument in 1934 and later donated the land to the United States. Now the cross is encased in a plywood box while its fate is being decided.
"When the Ninth Circuit ruled and said that this memorial was unconstitutional, Congress had a choice," Kagan said. "And the choice was to take down that memorial - which meant an enormous amount to veterans in the community - or to completely dissociate the government from that memorial. And what Congress did was to completely dissociate the government from that memorial, while allowing some war memorials to stand."
The Obama administration also has argued that the land transfer should put an end to the issue. Justice Samuel Alito seemed to agree when he asked, "So, isn't the sensible interpretation of the injunction that it was prohibiting the government from permitting the display of the cross on government property, and not on private property that happens to be within the Mojave National Preserve?" Alito said.
"I thought (the argument) was that, although there was going to be a formal transfer of title, as a practical matter, the government was still involved with the maintenance of the cross on this land. And when the government says that that's not the case, I don't know why that doesn't cure the practical problem," he said.
Peter J. Eliasberg - managing attorney for the ACLU Foundation of Southern California (it represents former National Park Service official Frank Buono in the case), disagreed with Alito's view. "One of the bases for the entry of the injunction in the first instance was the way that the government had favored one party to come on, contrary to the government's own regulations, and erect a permanent symbol, while not allowing others," Eliasberg said.
Justice Antonin Scalia strongly disagreed with that perception.
"What would you have them erect? A cross - some conglomerate of a cross, a Star of David, a Muslim half-moon and star?" Scalia said. "I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion."
Chief Justice John Roberts concurred with Scalia. "I think the government told us the plaque reads ‘The cross, erected in memory of the dead of all wars, erected 1934 by members of Veterans of Foreign Wars, Death Valley Post 2884,'" Roberts said. "That's a big difference. I mean, the whole point is that the plaque tells you, this is not a government memorial, government structure. It was put up by members of the Veterans of Foreign Wars, Death Valley Post 2884."
Justice Stephen Breyer, however, said that the issue on the table was whether or not the land transfer violated the Ninth Circuit's orders to remove the cross. He seemed to think it did.
"The injunction says the government is enjoined from permitting the display of the Latin cross - period. Once this law takes effect and you follow it, you are violating that injunction. You don't need nine proceedings to see that," Breyer said.
"Now, if you don't like the injunction because you think the statute has so changed the circumstances ... there is a remedy. You go back to the district court and you say, ‘Judge, change the injunction.' But you haven't done that. And therefore, the only question before us is whether the Ninth Circuit is right in saying when you carry the statute into effect, you are violating this injunction, which I think no one could say you aren't."
Toward the end of the hour-long session, Scalia asked for consideration of the fact that the cross was designated as a war memorial - not a religious monument, despite the form it took.
The ACLU says other monuments to American war dead - such as Arlington National Cemetery - are not in jeopardy because they contain symbols of many religions, not just one. "Context matters," Eliasberg said.
The court isn't expected to decide on the case for several months. For more information, visit The Liberty Legal Institute online.