Supreme Court Reverses Order Barring Display of Cross At World War I Memorial

The U.S. Supreme Court today, in a fragmented decision producing six separate opinions, decided a challenge to Congress' transfer of a religious symbol on federal land to a private party, the VFW. The case involved the long-running dispute over the Sunrise Rock Cross in the Mojave Preserve memorial to those killed in World War I. In Salazar v. Buono, (Sup. Ct., April 28, 2010), the Court reversed the 9th Circuit and remanded the case. The Court of Appeals had found Establishment Clause problems with Congress' transfer of the cross. (See prior posting.) The Supreme Court's decision was announced in an opinion written by Justice Kennedy, joined by Chief Justice Roberts and joined in part by Justice Alito.

Justice Kennedy concluded that the government's objections to plaintiff's standing could not be raised at this stage of the litigation because the government had not properly sought Supreme Court review of the issue when it was initially decided. He then focused on the complex procedural history of the case. The district court enjoined the government from permitting display of the Cross on Sunrise Rock before Congress passed the statute transferring the land to a private party. The Court of Appeals affirmed on the ground that a reasonable observer would see the cross as an endorsement of religion. Plaintiff's challenge to the land transfer was brought in the form of seeking to apply or extend the original injunction to it. The district court enjoined the transfer on the basis of an improper Congressional purpose. Justice Kennedy objected:

The District Court thus used an injunction granted for one reason as the basis for enjoining conduct that was alleged to be objectionable for a different reason.... [It] failed to consider whether, in light of the change in law and circumstances effected by the land-transfer statute, the "reasonable observer" standard continued to be the appropriate framework through which to consider the Establishment Clause concerns invoked to justify the requested relief. As a general matter, courts considering Establishment Clause challenges do not inquire into "reasonable observer" perceptions with respect to objects on private land....

.... [T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. 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 a one-paragraph concurring opinion, Chief Justice Roberts said that the land transfer was no different that tearing down the cross, selling the land to the VFW, and having the VFW reconstruct the cross.

Justice Alito, writing separately, said he agreed with Justice Kennedy, except he did not see any need to remand the case for further proceedings. He would reverse the decision and instruct the district court to vacate its order prohibiting implementation of the land-transfer statute. He said:

Congress chose an ... approach that was designed to eliminate any perception of religious sponsorship stemming from the location of the cross on federally owned land, while at the same time avoiding the disturbing symbolism associated with the destruction of the historic monument. The mechanism that Congress selected is one that is quite common in the West, a "land exchange."

Justice Scalia wrote an opinion joined by Justice Thomas, concurring in the judgment but arguing that plaintiff lacks Article III standing to pursue what Scalia characterized as new relief, not an appliation of the original injunction. Plaintiff failed to allege any actual or imminent injury from the land transfer, since the only injury plaintiff claimed was his concern with seeing the cross on federal land.

Justice Stevens, in an opininon joined by Justices Ginsburg and Sotomayor, dissented. Stevens argued that it was proper for the district court to find that the land transfer statute violated its original injunction. He concluded that the land transfer statute did not end government endorsement of the cross:

First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding that the name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display.

Stevens goes on to assert that the plurality is attempting to reopen a settled issue-- whether the government can endorse the cross because of its dual symbolism. In concluding, he emphasized that because Congress has created no other memorial to the veterans of World War I, this sectarian symbol is the only monument to all the soldiers who died in that war.

Finally Justice Breyer wrote a separate dissent arguing that the Court should have dismissed the writ of certiorari as improvidently granted since the case turns on fairly clear principles of the law of injunctions and presents no federal questions of general significance. A district court has considerable leeway to interpret the meaning of its own injunctions, and should interpret the scope of an injunction in light of the injunction's purpose and history. The district court did that here. The Washington Post reports on the decision.

Anonymous Letter Claims To Be From Veteran Who Stole Sunrise Rock Cross

Yesterday's Barstow, California Desert Dispatch published an anonymous letter claiming to explain the theft earlier this week of the Cross on Sunrise Rock in the Mojave National Preserve World War I memorial. (See prior posting.) The newspaper, which said it could not verify the validity of the letter, reported it was transmitted by an anonymous caller who claimed it was written by the person directly responsible for the theft. The letter writer, claiming to be a veteran, said his decision to "lovingly" move the cross was impelled by language in the Supreme Court's recent decision permitting it to remain. (See prior posting.) The letter read in part:

5. The cross was erected illegally on public land in 1998 by a private individual named Henry Sandoz. Since then the government has actively worked to promote the continued existence of the cross, even as it excluded other monuments from differing religions. This favoritism and exclusion clearly violates the establishment clause of the US Constitution.

6. Anthony Kennedy desecrated and marginalized the memory and sacrifice of all those non-Christians that died in WWI when he wrote: '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.' The irony and tragedy of that statement is unique.

7. Justice Kennedy’s words in particular and others like them from the other Justices caused me to act.

8. At the time of its removal there was nothing to identify the cross as a memorial of any kind, and the simple fact of the matter is that the only thing it represented was an oddly placed tribute to Christ. This cross evoked nothing of the sort that Justice Kennedy writes of, it was in the end simply a cross in the desert....

12. We as a nation need to change the dialogue and stop pretending that this is about a war memorial. If it is a memorial, then we need to stop arguing about the cross and instead place a proper memorial on that site, one that respects Christians and non-Christians alike, and one that is actually recognizable as a war memorial.

13. If an appropriate and permanent non-sectarian memorial is placed at the site the cross will be immediately returned to Mr. Sandoz.

14. Alternatively, if a place can be found that memorializes the Christian Veterans of WWI that is not on public land the Cross will promptly be forwarded with care and reverence for installation at the private site.

[Thanks to Scott Mange for the lead.]

UPDATE: The May 16 San Bernadino Sun reports that rewards for return of the stolen cross now total $125,000.

Caretakers Ready To Erect New Cross On Sunrise Rock When Replacement Appears [UPDATED]

Fox News reported yesterday that the long-time caretakers of the Mojave Desert Veterans' Memorial have constructed an exact replica of the 7-foot cross that was recently stolen from the site and are ready to put it up if the Department of Justice approves. However, on Wednesday night, according to another Fox News report, a different cross reappeared on Sunrise Rock. The National Park Service is evaluating the Cross to see if it is the original one that has been returned, or a new one. That may determine whether it stays. God and Country blog reports on the latest developments.

Congress attempted to transfer the land on which the cross was constructed to the VFW to avoid an Establishment Clause challenge. In a fragmented decision last month, the U.S. Supreme Court sent the challenge to the land transfer back to the lower courts. (See prior posting.) While the cross was still missing, Hiram Sasser, the director of litigation for Liberty Legal Institute, which is representing the VFW, said the theft may have made it simpler to resolve the case on remand. He said: "If there's no cross there, does that mean that the land transfer goes through, it becomes property of the VFW, and we can put the cross back up?" Justice Roberts, in his concurring opinion last month in Salazar v. Buono, said:

At oral argument, respondent’s counsel stated that it "likely would be consistent with the injunction" for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them, with the VFW immediately raising the cross 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.

Meanwhile, on its website Liberty Legal Institute-- in an appeal that seems at odds with its litigation director's theory-- is asking for contributions to help reinstall the memorial on Sunrise Rock, apparently while the litigation proceeds and before the land is formally transferred to VFW. That appeal may now be unnecessary, depending on the Park Service's decision on the cross that has now reappeared.

Stolen Sunrise Rock Cross Replacement-- Up Again, Down Again

In a posting last night, updated this morning, I chronicled the reappearance of the Sunrise Rock Cross at the Mojave War Memorial after the original Cross-- the subject of a recent Supreme Court decision-- was stolen. Now, according to the San Diego Union Tribune , the National Park Service took down the replacement yesterday afternoon after determining that it was not the original Cross. The new cross was six inches taller than the original and was freshly painted. Four new holes were drilled to replace bolts cut off by thieves when they took the original. A Park Service spokesperson gave two reasons for removal of the replacement cross. First the government is still under court order not to display a cross on Sunrise Rock, at least prior to any transfer of the land to the VFW. Second, the new Cross is illegal since the person erecting it did not follow Park Service regulations to obtain permission to put up a new memorial in a national park. [Thanks to Scott Mange for the lead.]

Another Cross Appears and Is Removed From Sunrise Rock

The long-running battle over the the cross on Sunrise Rock in the Mojave Desert Veterans' Memorial is back in the news. Congress attempted to transfer the land on which the cross was constructed to the VFW to avoid an Establishment Clause challenge. In a fragmented decision, the U.S. Supreme Court sent the challenge to the land transfer back to the lower courts. (See prior posting.) Subsequently the cross that was the subject of litigation was stolen, private parties erected a replica (see prior posting) and the National Park Service removed the replica to comply with a district court injunction that was still in effect. (Background from NPS). Yesterday Scripps Howard reported that yet another cross appeared on Sunrise Rock on Monday. Park Service rangers removed it on Tuesday. Park Service police will investigate who erected the cross and whether a crime was committed. Both this cross and the former one that was removed will be held as evidence while negotiations to settle the lawsuit over the land transfer continue. On Tuesday, the federal district court granted the parties a 90-day extension in their attempts to reach a settlement.

9th Circuit: Transfer of Cross To VFW Did Not Cure Establishment Clause Violation

Congress' attempt to avoid Establishment Clause problems by transferring the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW has failed. In Buono v. Kempthorne, (9th Cir., Sept. 6, 2007), the U.S. 9th Circuit Court of Appeals first rejected the government's contention that the case was not ripe. Moving to the merits, the court focused on the government's ongoing oversight and maintenance of the property, the government's reversionary interest in the property, the unusual method of authorizing the land exchange with the VFW and the government's continuing efforts to keep the cross on the property. The court concluded that the land transfer would violate the district court's earlier injunction against display of the cross on government property. It concluded: "carving out a tiny parcel of property in the midst of this vast Preserve—like a donut hole with the cross atop it—will do nothing to minimize the impermissible governmental endorsement." Reuters yesterday reported on the decision. (See prior related posting.) [Thanks to Inverse Condemnation blog for the lead.]

Sunrise Rock Cross-- Focus of SCOTUS Decision-- Stolen By Vandals

The Cross on Sunrise Rock in Mojave National Preserve-- the focus of a recent Supreme Court decision-- has been torn down by vandals. CNN reports that the 6-foot high metal cross that served as a memorial to those killed in World War I was removed Sunday night from its difficult-to-reach site in the California desert. Last month the U.S. Supreme Court issued a fragmented ruling in the Establishment Clause challenge to the cross, which had been transferred to the VFW in order to avoid constitutional issues. The Supreme Court's decision in Salazar v. Buono permitted the cross to remain, at least for now. The National Park Service is investigating the incident, but no arrests had been made as of Tuesday morning. [Thanks to James Maule via Religionlaw for the lead.]

Mojave Desert Cross Case Argued Before 9th Circuit

Last Monday, the U.S. Ninth Circuit Court of Appeals heard oral arguments in Buono v. Kempthorne, a case involving the constitutionality of a transfer of federal lands to private parties in order to preserve the Mojave Desert Cross war memorial. The cross was originally put up by the Veterans of Foreign Wars. When it was challenged in litigation, the federal government took steps to transfer the public land on which the cross sits to private ownership. An audio recording of oral argument in the case is available online. The oral arguments are covered by stories in the Gospel Herald and One News Now.

American Legion Blasts 9th Circuit's Mojave Cross Decision

American Legion National Commander Marty Conatser has issued a strong statement criticizing the U.S. 9th Circuit Court of Appeals' recent decision in Buono v. Kempthorne. The 9th Circuit concluded that Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW did not eliminate an Establishment Clause violation. According to the Legion's press release, Conaster said:

This is one more prime example of wrong-headed political correctness and one more critical reason why the current Congress must pass the Public Expression of Religion Act.... Today it’s a memorial. Tomorrow, these same judges can order the removal of crosses on veterans gravestones, the dismissal of military chaplains and the closure of base chapels.

Supreme Court Grants Cert In Sunrise Rock Cross Case

The U.S. Supreme Court today granted certiorari in Salazar (Interior Secretary) v. Buono (Docket No. 08-472, cert. granted 2/23/2009). (Order List.) In the case, a panel of the 9th Circuit found Establishment Clause problems with Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW. Five judges dissented from the 9th Circuit's denial of en banc review, writing a long opinion saying there that there was no evidence that the government would maintain or support the Sunrise Rock Cross after its transfer. (See prior posting.) The Justice Department has posted the government's petition for cert. which raises both questions of the lower court's ruling on standing as well as its application of Establishment Clause doctrines to the sale of real property as a way to rid the government of Establishment Clause problems. Here is respondent's brief in opposition (from SCOTUS blog), and the government's reply brief. [Thanks to Derek Gaubatz for the lead.]

Sunrise Rock Memorial Case Finally Settled

The long-running litigation over the cross on Sunrise Rock in the Mojave Desert Veterans' Memorial is finally over. The case had been remanded to the district court by a fragmented U.S. Supreme Court decision in 2010. (See prior posting.) A California federal district court judge on Monday issued an order (full text) approving a settlement agreement (full text) under which the parties agree to implement a land transfer authorized by Congress in 2004. (117 Stat. at 1100). Under the agreement, a one acre parcel of land on Sunrise Rock will be transferred to the Veterans of Foreign Wars in exchange for a different donated 5-acre parcel that is of equal value. The National Park Service will install a fence around the one-acre on Sunrise Rock and install signage on each side indicating that the land is private property.  The National Park Service will also install a replica of the original memorial plaque on Sunrise Rock, but will not acquire a replica of the original cross. The National Park Service will not install other plaques regarding the cross or the veterans memorial, but may publicize information about it in brochures and on maps. AP reports on the settlement.

Split 9th Circuit Rejects En Banc Review In Sunrise Rock Cross Case

Yesterday, a 3-judge panel of the U.S. 9th Circuit Court of Appeals issued an amended opinion in Buono v. Kempthorne, (9th Cir., May 14, 2008), eliminating one footnote, but otherwise reaffirming its holding finding Establishment Clause problems with Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW. (See prior posting.) The deleted footnote had indicated disagreement with a 7th Circuit case on land transfers undertaken to end Establishment Clause problems.

After the panel refused to grant a rehearing, the full court also refused to grant an en banc rehearing. However, in a long opinion, five judges dissented from the denial en banc review. The dissent argues that there is no evidence that the government will maintain or support the Sunrise Rock Cross after its transfer, and says that the VFW should not be required to sacrifice its private rights in the Sunrise Rock land in order to cure an Establishment Clause violation by the government. [Thanks to How Appealing for the lead.][Corrected].

Cert. Filed In Mojave Desert War Memorial Cross Case

On Oct. 10, the U.S. Solicitor General filed a petition for certiorari with the Supreme Court in Kempthorne v. Buono, (Docket No. No. 08-472). In the case, the 9th Circuit found Establishment Clause problems with Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the Veterans of Foreign Wars. The full 9th Circuit, with 5 judges dissenting in a long opinion, denied en banc review. (See prior posting.) Today's Los Angeles Times reports on the filing of the cert. petition, indicating that the petition argues that the retired park service employee who brought the action lacked standing and, in any event, Congress cured any problem by conveying the land to the VFW, a private organization. (See prior posting.)

UPDATE: Here is the full text of the petition for certiorari, thanks to Inverse Condemnation blog.

Colbert's Satirical Review of Arguments In Sunrise Rock Cross Case

There has been much commentary on last week's oral arguments before the Supreme Court in Salazar v. Buono-- the case involving the Sunrise Rock Cross located in the Mojave Preserve war memorial . (See prior posting.) In paticular pundits have focused on Justice Scalia's questioning. (St. Louis Post Dispatch.) Stephen Colbert's satirical take on the arguments is among the more interesting reactions to Scalia. Thanks to Don Byrd for pointing out this video clip:

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
The Word - Symbol-Minded
http://www.colbertnation.com/
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Supreme Court Hears Arguments In War Memorial Cross Case [Revised]

The Washington Post and the Los Angeles Times report on today's oral arguments before the U.S. Supreme Court in Salazar v. Buono. At issue is the question of whether Congress' transfer to the VFW of the Sunrise Rock Cross, located in the Mojave Preserve war memorial in California, eliminated Establishment Clause problems that might otherwise exist with government display of a religious symbol. The arguments involved extensive questions from the Justices, and a number of the questions focused on the exact procedural posture of the case. There were also questions about the broader underlying Establishment Clause issue. In addition, the government had raised a standing issue, and there was some questioning about whether it was appropriate to still raise standing at this stage of the litigation. (See prior posting.) The Supreme Court has posted the full transcript of the oral arguments on its website. All the briefs filed in the case are also available online.

Sunrise Rock Cross Litigation Becomes Even More Complicated

The complex procedural history of the Establishment Clause challenge to the Sunrise Rock Cross in the Mojave Preserve veterans' memorial has just become more complicated. Liberty Institute announced yesterday that it has filed a new lawsuit on behalf of the VFW seeking to enforce the statute passed by Congress in 2003 (Defense Appropriations Act 2004, Sec. 8121) directing the Secretary of Interior to transfer title to the property to the VFW. The constitutionality of the transfer statute was challenged on Establishment Clause grounds in a previous lawsuit. Last year the U.S. Supreme Court reversed the 9th Circuit's decision that had found Establishment Clause problems with the transfer. However the Supreme Court's reversal and remand -- in six fragmented opinions-- did not clearly decide the merits of the case. (See prior posting.) Now in VFW Post 385 v. United States, (CD CA, filed 1/10/11) (full text of complaint), the VFW asks the court to quiet title to the parcel of land, to issue a declaratory judgment that the VFW is the owner of the land and to issue an injunction requiring the Secretary of Interior to consummate the land transfer. The lawsuit was apparently triggered by the district court's recent decision refusing to permit the VFW to intervene in the case on remand from the Supreme Court. Riverside (CA) Press Enterprise reports on the new lawsuit. For other developments, see prior related posting. [Thanks to Alliance Alert for the lead.]