By Patrick B. Craine
WASHINGTON, D.C., October 9, 2009 (LifeSiteNews.com) – The ACLU's effort to remove the 75-year-old War Memorial Cross from California's Mojave desert has landed the case in the United States Supreme Court. On Wednesday the Supreme Court justices heard oral arguments in the case of Salazar v. Buono.
The 8-foot cross is a memorial of World War I first erected in 1934 by the Veterans of Foreign Wars (VFW) to remember fallen service members, and is now part of a federal preserve.
When Buddhists attempted to erect a shrine near the cross in 1999, the National Parks Service (NPS) impeded them and, further, declared their intention to remove the cross. The same year, they decided it did not qualify for the National Register of Historic Places because it is used for religious purposes and because it has been replaced several times during the course of its history.
In response, Congress acted to maintain the cross, beginning with legislation in December 2000 that prohibited government funds from being used to remove the cross, and in 2002, designating it a national war memorial. Their efforts culminated in a September 2003 land exchange that transferred its ownership from the Parks Service to the VFW.
The case began with a complaint from Frank Buono, former NPS employee in Mojave National Preserve, who alleged that the use of a religious symbol as a national war memorial was offensive and violated the separation of church and state.
The cross has been boarded up following a 2002 U.S. District Court decision. In 2007, the Ninth Circuit Court of Appeal agreed with the district court, and now the fate of the cross awaits the decision of the Supreme Court.
The ACLU argued on Wednesday that the land transfer does not address what they consider to be a violation of the Establishment Clause, the part of the First Amendment which guarantees the separation of church and state. They insist that under the current setup the government is still endorsing one particular religion over others.
“The cross is unquestionably a sectarian religious symbol, and as a congressionally designated national memorial – one of only 49 national memorials in the country – it would convey the message that the military values the sacrifices of Christian war dead over those of service members from other faith traditions,” said Peter Eliasberg, managing attorney for the ACLU of Southern California.
The ACLU's case is being challenged by numerous parties interested in preserving religious freedom.
“This display is not only appropriate but constitutional as well and we are hopeful that the Supreme Court will reach that conclusion,” said Jay Sekulow, chief counsel of the American Center for Law and Justice (ACLJ), who submitted an amicus brief representing 15 members of Congress. “Simply being 'offended' is not enough to create a constitutional showdown.”
In their brief, the ACLJ maintain that this challenge has no place in federal court, and that people who are offended by government speech or displays should not be permitted to use the Establishment Clause to seek relief in federal court.
The Thomas More Law Center has also filed a amicus brief along with the Individual Rights Foundation. “The ACLU hates crosses as much as vampires hate crosses or the daylight,” says Richard Thompson, the President and Chief Counsel for the Law Center. “Despite their claims to the contrary, this case is part of the ACLU's national agenda to incrementally remove every cross on public land. Their guiding principle is 'out of sight out of mind.' The Court's ruling in this case will impact crosses in thousands of memorials nationwide.”
In another amicus brief, Liberty Counsel (LC) urges the Supreme Court to adopt new measures for applying the First Amendment. A display should be permitted, they argue, that “comports with history”, and that “does not objectively coerce participation in a religious exercise or activity.”
“Passive displays like the World War I Memorial, the Ten Commandments, Nativity scenes, or statements like the National Motto do not force anyone to participate in a religious exercise and, thus, do not establish religion,” argues LC founder Matthew Staver. “This case reveals the extremism of the ACLU. For 75 years this cross in the Mojave Desert did not disturb anyone. It stood as a memorial to the heroes of World War I. Removing this memorial would 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.”
The Supreme Court is expected to take several months to make their decision.