Can Congress move to protect a war-memorial cross on public land? The U.S. Supreme Court tackled the question today in a case that’s remarkably similar to the never-ending legal battle over La Jolla’s Mt. Soledad cross. But the justices don’t seem likely to set new precedents.

At issue is a 74-year-old war-memorial cross in the Mojave Desert in San Bernardino County. It sits on just an acre of land, one of 1.6 million acres in the Mojave National Preserve, but it’s become a major player in the debate over the separation of church and state.

To protect the Mojave cross from being challenged on constitutional grounds because it’s on public property, Congress transferred the land underneath it to private ownership in 2004. Similarly, Congress in 2006 acted to transfer land underneath the Mt. Soledad cross to the federal government.

The ACLU, which is targeting both the Mojave cross and the one atop Mt. Soledad in La Jolla, argues that the government can’t move to protect an unconstitutional religious symbol on public land.

Veterans groups came down on both sides of the Mojave issue, with some complaining that the cross doesn’t honor the dead of other religions and others warning that “without action by this Court, countless veterans memorials will perish.”

At the Supreme Court today, justices disagreed over whether the cross belongs on public property. As NPR reported:

The Obama administration argued that Congress removed any constitutional questions over the separation of church and state when it transferred ownership of the land where the cross stands to a private owner. The approach appeared to have some traction with the court’s conservative justices.

Justice Samuel Alito asked, “Isn’t that a sensible interpretation” of a court order prohibiting the cross’ display on government property?

But the more liberal justices seemed to agree with a federal appeals court that invalidated the transfer, saying Congress was trying to maneuver around the First Amendment.

The Washington Post reported that the justices “appeared to be looking for a narrow way out of the case,” with only Justice Antonin Scalia appearing to want a broader ruling:

Scalia disputed an assertion by Peter Eliasberg, counsel for the American Civil Liberties Union, that the cross was the essential symbol of Christianity and that a war memorial that featured only a cross by definition excluded recognition of soldiers of other faiths.

When Scalia said the cross was the “most common symbol of the resting place of the dead,” Eliasberg replied that would not be the case in a Jewish cemetery.

Scalia shot back that it was an “outrageous conclusion” that the cross only honored Christian war dead.

A ruling in the case isn’t expected for months.

The Mt. Soledad case, which has been winding through the courts for more than 20 years, has gone through numerous permutations, including attempts to sell the property under the cross. Finally, Congress stepped in.

A federal judge refused to reverse the federal takeover of the property last year, saying the memorial “communicates the primarily non-religious messages of military service, death and sacrifice.” The ACLU is appealing the ruling to a federal circuit court.

David Blair-Loy, legal director of ACLU of San Diego and Imperial Counties, said the differences between the Mojave and Mt. Soledad cases may provide some protection if the Supreme Court rules in favor of the Mojave cross.

For one, he said, the plaintiffs in the Mt. Soledad case include local residents, unlike the Mojave case. One issue in that case is whether the plaintiff, a resident of Oregon, had the right to sue over the cross.

And, Blair-Loy said, the Mojave case revolves around the issue of whether Congress could transfer the land under the cross to private ownership. “At Mt. Soledad, the government itself still owns the land and the cross,” he said. “Obviously, (the case) is even more clear when the government itself owns the land.”

A spokesman for the city attorney’s office, which spent years fighting for the Mt. Soledad cross, declined to comment.


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