Monumental Challenge

The two-lane highway cuts through a Mojave Desert landscape of cacti, Joshua trees and fire ants. Over a span of 76 minutes, exactly six cars pass by. Visitors are well-advised to turn off their cell phones to conserve battery power. There is no “Now Network.” No “Your World Delivered.” Other than an occasional blast of warm wind or the intermittent buzz of flying insects, the air is still and quiet.

Remote as it is, this particular area of southern California stands squarely at the center of a judicial firestorm over the constitutionality of allegedly religious symbols in public places. The Supreme Court will hear the case on Oct. 7; its ruling is expected to deliver a long-awaited precedent that could dictate faith’s place on government-owned land and affect the future of many public war and veterans memorials, such as the Mojave Desert cross that honors World War I veterans. The American Legion adamantly opposes the removal of religious symbols or expressions – be they crosses, angels, Stars of David, engraved, written or recited references to God, or other manifestations – from public view. An American Civil Liberties Union establishment-clause lawsuit has forced the federal government to conceal the Mojave Desert memorial inside a wooden box until the case is cleared up. When it hears Salazar v. Buono on Oct. 7, the Supreme Court will decide whether the box comes off or if the cross comes down. The decision will likely shape similar cases currently in the judicial system, and those looming ahead. But for now, the cross of the Mojave Desert Veterans Memorial – originally erected in 1934 to honor World War I veterans – remains shielded from view, in order to keep it from offending anyone who drives past. Many who travel the narrow highway don’t even realize the cross exists. “You would have to go extremely out of your way to be offended by this memorial,” says Hiram Sasser, director of litigation for the Liberty Legal Institute in Dallas. “The only people who ever see this veterans memorial on a regular basis are Marines from the Twentynine Palms base going to Las Vegas for the weekend. I doubt they are offended by it, if they even see it as they drive by. The only person I could imagine who would be offended by this memorial is someone seeking out offense for the purpose of establishing a case. “If a veterans memorial in the shape of a cross out here in the middle of nowhere establishes religion ... that’s just crazy. I guess it establishes a religion for the rattlesnakes and coyotes.” The Liberty Legal Institute – a not-for-profit law firm founded in 1997 to protect religious freedoms and First Amendment rights for individuals, groups and churches – has teamed up with The American Legion, Veterans of Foreign Wars and other veterans service organizations to take on the ACLU, which has also fought the Boy Scouts in San Diego’s Balboa Park and the Legion over a veterans memorial that includes a cross at Mount Soledad, Calif. “World War I memorials throughout the world – whether it’s New Zealand, the Czech Republic, England, the United States – have traditionally been in the shape of a cross,” Sasser says. “That’s how World War I veterans were remembered and honored. And so I think that all of these memorials deserve protection. We should not throw away the symbolism of the sacrifice and the courage of our World War I veterans simply because some people don’t like the symbol.” “The Dead of All Wars.” The Mojave Desert cross was erected by a group of World War I veterans who moved to the desert for its isolation and warm, dry climate. The memorial was built to honor “the dead of all wars” and for 50 years was the responsibility of John Riley Bembrey, a World War I Army medic who later became a prospector. He proclaimed himself a non-religious man, viewing his dedication and care for the cross as a duty to his friends who made the ultimate sacrifice in battle. Before Bembrey died in 1984, he convinced his longtime friend, Henry Sandoz, to take over the responsibility. “He asked somebody to maintain the cross and re-erect it – it had got knocked down – so he didn’t ask me directly to do it,” Sandoz said. “But I knew that he was hinting that I would take it upon myself to do that, and that’s what I have done. We really had a good friendship. So I’ve been maintaining that cross ever since. He was a veteran of World War I, and I just thought it was a good thing to do for veterans – in honor of the veterans, I guess I should say.” In 1986, the cross was vandalized, so Sandoz installed a metal-pipe version similar to the original. He bolted it down to Sunrise Rock and filled the pipe with concrete, making it nearly impossible to remove. In fact, Sandoz did such a good job building the replacement cross that Mojave Desert Preserve officials had to ask him directly for a way to tear it out, after the U.S. Ninth Circuit Court ruled it had to be removed. Sandoz did not oblige. “I told her, ‘No, I put it up to stay,’” says Sandoz, 70. “In fact, I didn’t even say ‘No.’ I said, ‘Hell no.’” Alongside Wanda, his wife of 49 years, Sandoz tries to stay calm when discussing the cross. The couple sits shaded from the late-morning heat on their patio in Yucca Valley, Calif. Wanda describes her anger at the decision to cover the memorial cross. “For so many years, we’d drive up and see the cross,” Wanda says. “Now you drive up, and the box is just like a slap in the face. It’s just very offensive to see that box. For 14 years, I drove the school bus by there several times a day, and I would always look for it. I knew the exact spot on the road where I could see it, and it just, I don’t know, gave me a sense of peace to see it there, knowing what it was there for. It would always remind me to be thankful for our veterans and what they did for our country.” The couple offered to donate five acres of land they own within the Mojave Desert to the federal government, in exchange for the acre of land that includes the cross; the couple would give that land to nearby VFW Post 385. An act of Congress instructed the Department of the Interior to conduct the trade. The district court and the Ninth Circuit Court of Appeals, however, ruled the land transfer didn’t erase the alleged establishment-clause violation and prohibited it from occurring. Sasser said that attempt didn’t placate Frank Buono, a former National Park Service employee who found the cross objectionable on public land, nor did it satisfy the ACLU. “Frank Buono is only offended that it is a religious symbol on government land,” Sasser says. “He has articulated that he’s Catholic, and that he’s not offended by seeing the cross. He just doesn’t think it should be on government land. So why in the world is he allowed to challenge the land transfer to the VFW if the memorial will be in private hands? Why should he care about that? “(The ACLU is) committed to making sure (the cross) comes down. That’s all they care about.” Not so, the ACLU says. “The plaintiffs in these two cases – including veterans and members of a variety of religions and backgrounds – filed these actions to reinforce the principle that the government should honor all servicemembers, not just those of one preferred faith,” said Peter Eliasberg, managing attorney of the ACLU of Southern California and lead attorney in Salazar v. Buono. Sasser contends there’s a certain monetary payoff for the ACLU if it wins the case. The ACLU has been awarded millions of dollars in attorneys fees from winning similar establishment-clause lawsuits in the past, including $1 million in the Dover Area School District intelligent-design case and nearly $500,000 in the Judge Roy Moore Ten Commandments case. “I would estimate that the ACLU has, at least, about $1 million in attorneys’ fees sunk into this case,” Sasser said. “I would not be shocked if it had $2 million sunk into this case. At some point, this case had to even look to the ACLU as, ‘Maybe we shouldn’t have done this. Maybe this is kind of silly.’ But because of the attorneys’ fees that are out there available to them, they may be motivated by that to go ahead and press on.” Domino Effect. Sasser believes that Salazar v. Buono will be a landmark ruling that will affect similar lawsuits throughout the country. One involves the Mount Soledad Veterans Memorial near San Diego, which has been the site of a battle between the city and the ACLU for more than 20 years. The point of contention: a 29-foot Latin cross erected in 1954 to honor U.S. veterans. The cross originally was on city property; the property was transferred to the federal government in 2007. Even though the man who brought on the original lawsuit – atheist Phillip Paulson, who, in 1989, claimed that allowing a cross to remain on public land violated both the California and U.S. constitutions – died in 2006, the ACLU has stayed with the case and is now targeting the federal government. “The central issue on this was an objection to what was perceived as a religious symbol in a government park, and as it turns out, the ACLU essentially made its point, I believe, and got the city to sell the land to our association,” says William Kellogg, president of the Mount Soledad Memorial Association. “So from my perspective, they achieved separation of church and state. When they realized it was not going to result in the destruction of the cross, they didn’t like it, and so they opposed that sale to our private organization, and things kept on going. “We have done a whole lot to point out that it is not just a stand-alone religious monument – that it is truly about veterans. At this point, it appears to me that the legal action is a little bit more on the vindictive side than it is on the actual issue of separation of church and state.” That case currently rests in the Ninth Circuit Court, as does Barnes-Wallace v. Boy Scouts of America, which also stands to be affected by the Mojave decision. The City of San Diego leases two pieces of property – Camp Balboa in Balboa Park and Fiesta Island in Mission Bay Park – to Boy Scouts of America’s San Diego Imperial Council. The Scouts built a campground and an aquatic center on the sites; both are open to the public. The ACLU took issue with the Scouts’ presence, contending the organization should not be allowed to lease public land because of the Scouts’ leadership policies and religious beliefs. The Boy Scout Oath includes the phrase, “To do my duty to God and my country.” Both the Mount Soledad and Balboa Park cases will be heavily influenced by the Salazar v. Buono ruling, Sasser says, “because they have very similar issues in regards to standing. Standing is the doctrine of who is allowed to bring a lawsuit. Who is affected by the Boy Scouts leasing property from the city? Nobody. But in standing doctrine, sometimes courts just invent things just to allow certain lawsuits to go forward. That’s what happened with the Ninth Circuit. (Salazar v. Buono) may have something to say about standing, and if it does, that may directly affect that Balboa Park case.” Sasser, whose office represents The American Legion as an amicus (friend of the court) in these cases, said those seeking to remove the Scouts from Balboa Park have never actually set foot in the park. “They are simply anticipating that they might be offended if they see a Boy Scout run by in the park,” Sasser says. “I don’t know what merit badges they might find most offensive. They haven’t been to the park and been offended, but they’re certain they might be offended when they show up.” Sasser is confident that the Supreme Court will rule in favor of allowing the Mojave cross to stay up. As for the final vote, he thinks it could be as close as 5-4 or as sweeping as 9-0. Should the court rule against the cross, memorials across the nation and abroad could be next, he says. “The veterans memorial in downtown Indianapolis has angels all over it,” he said. “It’s been there since just after the Civil War. It’ll have to come down. The Canadian Cross of Sacrifice donated in the 1920s to the United States ... sits in Arlington Cemetery. It’s going to have to be torn down. The Argonne Cross – the only other World War I memorial in Arlington Cemetery – it’ll have to be torn down. Where it says on the Tomb of the Unknown Soldier ‘Herein lies a soldier known but to God,’ they’re going to have to sandblast ‘God’ off that marble, and they’re going to have to, I guess, chisel in ‘known to no one.’ “What’s really sad about this is, if this memorial out here in the middle of nowhere is unconstitutional, then all those veterans memorials in the shape of crosses are unconstitutional. That’s a big problem.” So while Salazar v. Buono waits for its Oct. 7 court date, Henry and Wanda Sandoz wait for the day they can take the Mojave Desert cross out of its court-ordered box. “I’ve been thinking, ‘What kind of celebration should we have?’” Wanda says. “We’ll have to do something.” Wanda and Henry don’t want to think about coming out on the losing end of the Supreme Court’s decision. “(I’d) feel really bad,” Henry says. “All our work and everyone else’s was in vain, then, and our country is going down the drink.” “It would be so sad for the veterans ... all the veterans who have gone, the veterans who are here,” Wanda says. “All the beautiful war memorials in Washington, D.C. – I know they’re prettier than ours, but the meaning is the same. It’s honoring our veterans. That cross is doing it every bit as well as any war memorial that’s anywhere. If someone else had put it up, it wouldn’t have the same meaning. But World War I veterans put it up there. That should mean a lot. It does to us.” Steve Brooks is senior editor of The American Legion Magazine.