ACLJ: Supreme Court Must Uphold Cross Display in California's Mojave Desert

(Washington, DC) - The American Center for Law and Justice (ACLJ) which represents 15 members of Congress in its amicus brief said the Supreme Court of the United States has an important opportunity to reject a troubling legal challenge and uphold a long-standing display of a cross that represents a war memorial in Californias Mojave Desert.  The Supreme Court today heard oral arguments in the case of Salazar, Secretary of the Interior, et al., v. Buono. (08-472)

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 ACLJ.  To create a constitutional crisis by displaying an 8-foot cross honoring war veterans is clearly wrong.  The Supreme Court should reject the plaintiffs standing and take this opportunity to put an end to a continuing and disturbing practice.  This case is a perfect example of a troubling phenomenon thats plagued the federal court system for years ideologically motivated citizens and public interest groups search out Establishment Clause violations often in the form of a passive religious symbol or display of some sort and turn it into a federal case because they are offended.  The Court has an important opportunity to end this pattern by concluding that simply being offended is not enough to create a constitutional showdown.  Were hopeful the high court will overturn the appeals court decision and permit the war memorial cross to remain in place.

In its friend-of-the-court brief filed in this case, the ACLJ contends that this challenge has no place in federal court.

This case is only the most extreme example of a phenomenon that has plagued the federal courts for the past three decades, the brief asserts.  Ideologically motivated citizens and public interest groups search out alleged Establishment Clause violations, almost always in the form of a passive religious symbol or display of some sort, and make a federal case out of offense at the display.

The brief also contends that those who are offended by government speech or displays should not be permitted to use an Establishment Clause claim to seek relief in federal court. 

The basis for standing is typically that the religious display offends the sensibilities of the plaintiffs, according to the brief.  The offense may be characterized as an affront to religious values, or as one in which plaintiffs feel stigmatized as political or community outsiders.  But the sum and substance of the injury is that the display bothers the plaintiffs.  The ACLJ contends that the lax rules governing who can sue under the Establishment Clause are not consistent with the Constitution and separation of powers doctrine.

The ACLJ represents itself and 15 members of the 111th Congress including House Minority Leader John Boehner.  The ACLJ also represents these members of the U.S. House of Representatives:  Todd Akin, Michele Bachmann, Roy Blunt, Eric Cantor, Randy Forbes, Scott Garrett, Walter Jones, Jim Jordan, Doug Lamborn, Thaddeus McCotter, Jeff Miller, Mike Pence, Joseph Pitts, and Joe Wilson. 

The ACLJ amicus brief is posted here.

In the Mojave Desert case, the Veterans of Foreign Wars (VFW) built a cross more than 70 years ago to memorialize fallen service members in a remote area that is now part of a federal preserve. After the National Park Service denied a request to build a Buddhist shrine near the cross in 1999 and declared its intent to remove the cross, Congress designated the cross and an area of adjoining property as a national World War I memorial. 

A lawsuit was filed challenging the cross and, after the federal district court held that the federal governments display of the cross violated the Establishment Clause, Congress directed the Department of the Interior to convey one acre of property that included the memorial to the VFW in exchange for a five-acre parcel of equal value.  But the U.S. Court of Appeals for the Ninth Circuit determined that the cross - and the land transfer - violated the Establishment Clause and ordered it removed.

This case comes just months after the ACLJ obtained a victory from the Supreme Court in a case where a Utah city accepted a monument of the Ten Commandments and displayed it in a city park.  In Pleasant Grove City v. Summum, the high court unanimously concluded in February that the city could constitutionally display the monument and reject another clearing the way for governments to accept permanent monuments of their choosing in public parks.  You can read more about that decision here. 

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.