Divided Supreme Court Sends “Mojave Desert” Cross Case Back to Lower Court

Today, in a 5-4 vote, the Supreme Court reversed a lower court decision in Salazar v. Buono that would have required the government to remove a World War I memorial cross that has stood in the Mojave National Preserve for over 70 years, remanding the case to the district court to apply the correct constitutional standard.

The decision was so badly split that there was no one opinion on behalf of the Court. However, Justice Kennedy’s controlling plurality opinion rejected the argument that the cross is an unconstitutional government “endorsement” of religion, stating that “the Constitution does not oblige government to avoid any public acknowledgement of religion’s role in society.” Justice Kennedy also stated that the district court was wrong to strike down the federal statute transferring the land the cross stands on to the Veterans of Foreign Wars. His opinion was joined in full by Chief Justice Roberts, and in part by Justice Alito, who would not have remanded the case. Justices Scalia and Thomas would not have reached the merits at all, because they disagree that the plaintiff had standing to sue, though they would likely have reached a similar result on the merits. The dissenting Justices all agreed that the plaintiff had standing and would have upheld the lower court’s decision. On remand, the district court must reconcile these opinions and decide whether there is any reason for continuing the injunction it issued in 2002.

The Becket Fund for Religious Liberty, a law firm specializing in church-state issues, filed a brief before the Supreme Court defending the constitutionality of the Cross. The Becket Fund’s brief argued that a lone cross standing on private land in the desert sends different messages to different people and thus should not be interpreted as government approval of a particular religion.

“The Court’s ruling is simple common sense: Americans should be able to say what they want about religion on their own property—even if others disagree,” said Eric Rassbach, National Litigation Director of the Becket Fund. “It is unfortunate that the Court could not unify around a single rationale for its ruling. Nevertheless, the tea leaves the district court must read seem pretty clear to me.”

The decision leaves unanswered several important constitutional questions, such as the legal standard that should govern religious symbols on government property. Those questions may be answered soon, as several cases involving religious symbols are currently winding their way through the lower courts. One case—American Atheists vs. Duncan—involves roadside crosses in Utah memorializing fallen state troopers. In that case, the Becket Fund represents the states of Colorado, Kansas, New Mexico, and Oklahoma, arguing that the crosses are constitutional. The Supreme Court strongly hinted that it would agree, stating: “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.”

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