Supreme Court Reverses Lower Courts on Mojave War Memorial Cross

The Supreme Court’s voted in a 5-4 decision to reverse lower courts in California in the case involving the cross in the Mojave National Preserve. The decision is significant in showing a more permissive approach to such religious symbols.

The U.S. Park Service was ordered to remove an 8-foot-high cross that stands as a memorial to World War I soldiers. It was first raised in 1934.

The lower courts rejected a proposal to transfer the land to private hands as a way to preserve the cross. The five justices ordered the court to reconsider the plan. However, the decision was highly fractured, making it more of a plurality decision on the merits except for the result which garnered five votes: only Chief Justice Roberts concurred entirely with Kennedy; Justice Alito concurred in part and in the judgment; Justice Scalia (and Justice Thomas) concurred in the judgment. Justice Stevens dissents, joined by Justices Ginsburg and Sotomayor, and Justice Breyer dissents alone.

Associate Justice Anthony Kennedy dismissed the objections that the cross amounted to an endorsement of religion: “The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society. . . . 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.”

That could spell trouble for plaintiffs in a couple of other major cross cases working their way through the federal system.

Justice John Paul Stevens dissented, insisting that the government “cannot lawfully do so by continued endorsement of a starkly sectarian message.”

For his part, Justice Samuel Alito emphasized the remoteness of the site:”At least until this litigation, it is likely that the cross was seen by more rattlesnakes than humans.” Even if true, I do not see why that is relevant. Does Justice Alito believe that there is a sliding scale of entanglement depending on the number of people aware of it? That creates a constitutional version of the meditative question of whether a tree falling in the forest makes a sound if no one is around to hear it.

Here is the decision: 08-472

For the story, click here.

19 thoughts on “Supreme Court Reverses Lower Courts on Mojave War Memorial Cross”

  1. I could not agree with Elaine more. If this were a symbol of any other religion, it would have been removed forth-with (if it had even had the chance to be erected in the first place).

    Isn’t the notion that a religious symbol can be synonomous with a cultural or political one the very thing the constitution was written to prevent?

  2. What Mike A. said.

    Scalia, Ailito, Roberts and Kennedy.

    The Four Horsemen of American Christo-fascism.

    All four should be impeached along with Scalia’s nitwit lapdog Thomas.

  3. I haven’t had a chance to read the opinion yet, but Prof. Turley’s summary suggests reasoning eerily similar to that in the Summum case last year. I believe that the conservatives on the Court are hell-bent on eviscerating the Establishment Clause. Of course, they are receiving a great deal of moral support from the growing legion of evangelical revisionist historians who argue that the Constitution was really intended by the Founders to be a sort of statement of Calvinist religious doctrine which would govern the future nation.

  4. frankdawg,

    More people should see “Idiocracy.” If you can get through the silliness, you’ll see a great social commentary…and perhaps a great warning.

  5. I used to think the movie “Idiocracy” was a futuristic comedy, I have come discover it is actually a documentary. When do the justices start wearing big gold medallions that say “USSC Justice” on them carry a big-ass gavel?

  6. From the LA Times article:
    The Mojave cross sits atop Sunrise Rock about 10 miles from the nearest highway. In 1999, after the Park Service refused to permit a Buddhist shrine to be erected nearby, former park service employee Frank Buono sued, saying the official preference for the cross violated the 1st Amendment and its ban on “an establishment of religion.”


    Now won’t the the U.S. Park Service have to allow a Buddhist shrine…or a Star of David…or a crescent moon..or other religious symbols to be erected at that park–as well as at other publicly owned parks? If it doesn’t–won’t it be seen as the U.S. Park Service’s endorsement of the Christian religion?

  7. I must disagree with the dissent of Justice Stevens. His “Catch 22” reasoning is both idiotic and spits in the face of the authority granted Congress in Article IV; “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States”.

    The District Court ruled that displaying the cross on federal land violated the Establishment Clause. As a remedy, and out of respect for those who gave their lives to preserve the principles of our Constitution, Congress attempted to provide lawful remedy by transferring that land to a private owner.

    That wasn’t enough to make the court happy. The court wants its injunction to stand against a private entity too. That, for all those who love the First Amendment would permit the court’s injunction to infringe upon the rights of the private entity. The remedy was provided. It was fair and equitable to all parties.

  8. “For his part, Justice Samuel Alito emphasized the remoteness of the site:”At least until this litigation, it is likely that the cross was seen by more rattlesnakes than humans.””

    It boggles my mind that Alito is making this statement with a straight face.

    “Does a bear sh*t in the woods?”, asks young Samuel.

    Mama Alito replies, “Why yes, Samuel, it does! We are fully aware that a bear sh*ts in the woods, regardless if in a deep, dark cave, or out amongst the trees. The point is, my wee mental giant, we know the bear sh*ts in the woods.”

  9. Ms. EM

    We needs a A-rab to stick a Cresent Moon to the left of that cross and a Jew to stick a Star of David on the right and I will place that can of worms on the top of the cross. Then we can get a revised legal opinion.

  10. Roger Byron received his law degree from Regent University School of Law. Puts lie to the claim that the cross is a secular symbol.

  11. From the article:

    “For his part, Justice Samuel Alito emphasized the remoteness of the site:”At least until this litigation, it is likely that the cross was seen by more rattlesnakes than humans.”


    Sloppy reasoning … A few founding fathers turned over in their graves on that one.

  12. Alan

    “It seems the Supreme Court Justices are now willing to sacrifice their integrity to achieve their political goals.”


    In my opinion, at least four of them did that a long time ago.

  13. I realize that this case was remanded to the lower court to consider the legality of the transfer of property, but how much of a stretch is it to consider the controversy in Alabama?

    Can the state transfer ownership of the state courthouse to a private owner, then lease it back for $1/year? This would enable Judge Roy Moore to have his Ten Commandments monument returned – heck, “the owners” could even have it engraved into the floor.

    Am I in tin-foil hat territory here, or is this within the realm of unintended consequences (giving Scalia et al the benefit of the doubt, there)?

  14. I have to wonder if the Supreme Court’s decision would have been the same if the religious object in the Mojave had been a Star of David or a Crescent Moon–or the symbol of some other non-Christian religion.

    Doesn’t this decision open a can of worms?

  15. With this opinion, Alito has proven himself to be a total hack. I was also appalled during oral arguments when Scalia declared the cross was not a Christian religious symbol, and even more appalled to see Kennedy and Roberts endorse that view in the Court’s opinion. It seems the Supreme Court Justices are now willing to sacrifice their integrity to achieve their political goals.

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