Land Transfer To Private Veterans' Group Does Not Remedy Establishment Clause Violation, Says ACLU
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WASHINGTON – The Supreme Court heard arguments today in an American Civil Liberties Union case addressing whether Congress' transfer to private owners of a small parcel of land with a Latin cross on it in the Mojave National Preserve remedies the Establishment Clause violation found by the lower courts. The ACLU argued that transferring the land – with a cross on it designated by Congress as a national memorial – to the Veterans of Foreign Wars (VFW) does not cure the government's unconstitutional endorsement of one religion over another.
"We are hopeful that the Court will see that the land transfer does not fulfill the government's obligation not to favor any particular religion over others," said Peter Eliasberg, managing attorney for the ACLU of Southern California, in reference to his arguments before the Court today. "The cross is unquestionably a sectarian religious symbol, and as a congressionally designated national memorial – one of only 49 national memorials in the country – it would convey the message that the military values the sacrifices of Christian war dead over those of service members from other faith traditions."
The case, Salazar v. Buono, stems from a complaint raised by Frank Buono, a veteran and former assistant superintendent of Mojave National Preserve, who claimed that the designation of an overtly religious symbol as a national war memorial was offensive and violated the separation of church and state. In 2001, a federal district court found in Buono's favor and granted a permanent injunction barring defendants from permitting the display of the cross.
The cross was originally erected in 1934 by veterans of World War I and has been replaced several times since then. The most recent cross was built and looked after by a local resident, Henry Sandoz. Requests to erect a Buddhist shrine on the property were denied.
"By designating the cross as a national war memorial, and transferring the land underneath the cross to the VFW on condition that it maintain the memorial or forfeit the land, Congress has merely highlighted its message of religious endorsement and preferential treatment," said ACLU Legal Director Steven R. Shapiro. "Rather than resolving the Establishment Clause violation, Congress has compounded it."
In 2002, while the federal district court case was pending, Congress designated the cross as a national memorial, one of only 49 such memorials around the country. Others include Mount Rushmore, the Washington Monument and the Lincoln Memorial, although the Mojave cross would be the only one dedicated to soldiers who fought and died in World War I. In an attempt to circumvent the Establishment Clause violation, Congress also transferred one acre of land on which the cross stands to the VFW. Sandoz, the local resident looking after the cross, in turn transferred five acres of privately owned land to the federal government.
"The cross's message would not be, as the memorial's defenders claim, one of commemoration for all war dead and veterans or for all veterans of World War I," added Eliasberg. "Thousands of Jews, Muslims, Buddhists and members of other faiths who have served their country with honor do not regard the cross as a 'universal symbol.' That's one reason the military allows soldiers and their families to choose which religious symbol to put on headstones in military cemeteries – a policy the ACLU staunchly supports."
Read more about the Mojave cross case at: www.aclu-sc.org/news_stories/view/102832/
The ACLU's brief is available online at: www.aclu.org/scotus/2009term/40500res20090801/40500res20090801.html