By Kimberly Edds
Special to The Washington Post
Wednesday, June 9, 2004; Page A19
LOS ANGELES -- A federal appeals court has upheld a lower court decision
that a large white cross sitting on federal land in the Mojave desert
violates the constitutional guarantee of separation of church and state and
should be removed.
The American Civil Liberties Union sued the National Park Service in 2001 on
behalf of a retired park employee. A federal judge sided with the ACLU and
ordered the cross, in the Mojave National Preserve near the
California-Nevada border, be taken down.
The Department of Justice appealed the lower court's decision to the U.S.
Court of Appeals for the 9th Circuit. Rather than remove the cross, the Park
Service threw a large tarp over the structure while the case was in court.
Monday's opinion did not specify whether the cross should be removed
immediately or could remain covered if the case is appealed to the Supreme
Court.
"The [9th Circuit] said this case is really quite simple. Using a sectarian
religious symbol is not permissible on federal land," Peter Eliasberg,
managing attorney for the ACLU of Southern California, said. "Sometimes you
just have to hit them over the head three, four or five times."
A spokesman for the Justice Department said attorneys are reviewing the
ruling to determine whether to appeal.
The Veterans of Foreign Wars erected a cross in 1934 in memory of those who
fought and died in World War I. A plaque explaining the cross's purpose was
placed at the foot of the structure, but the sign disappeared long ago.
After being nearly destroyed several times, the cross -- originally two
pieces of wood nailed together and planted in the desert -- has been changed
several times. The latest version is made of two metal pipes welded together
and painted white.
Officially designated as a war memorial by Congress, the cross has also been
the site of Easter sunrise services over the years. In 1999, the National
Park Service denied a request to build a Buddhist religious symbol near the
cross.
Eliasberg scoffed at the government's argument that the site is a war
memorial. "That doesn't honor Muslim veterans, Jewish veterans, atheist
veterans or agnostic veterans," Eliasberg said. "It's a preeminent symbol of
a religion. If we want to have a war memorial on federal land, the
government certainly knows how to do that without using a divisive sectarian
religious symbol."
Rep. Jerry Lewis (R-Calif.) crafted a plan to keep the cross in place by
transferring the patch of land where the cross sits to the VFW in exchange
for five acres of privately owned land elsewhere in the preserve. The
legislation was approved earlier this year, but the transfer has not been
completed.
Because the land transfer would put the cross on private, not public, land,
the government argued that the issue of separation of church and state is
moot, and urged the court not to rule in the case.
But Circuit Court Judge Alex Kozinski, who wrote Monday's opinion, said the
transfer could take years to complete and provisions in the legislation
could allow the land to be transferred back to the government, putting the
cross back on public land.
"This case is not yet moot and may not be for a significant time, as
defendants conceded that the land transfer could take as long as two years
to complete," Kozinski said in a 14-page opinion.
A spokesman for Lewis said the lawmaker would support an appeal to the
Supreme Court, but he hopes the land transfer would make that unnecessary.
The ACLU has also challenged the constitutionality of the land swap.
© 2004 The Washington Post Company