(CN) – The Supreme Court ruled 5-4 Wednesday that a federal court crossed the line when it ordered the removal of a World War I memorial cross from federal land in California’s Mojave National Preserve. “Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message,” Justice Anthony Kennedy wrote for the conservative majority.
Retiring Justice John Paul Stevens wrote for the dissenting justices. “I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message.” He added that the government “should control wherever national memorials speak on behalf of our entire country.”
By ruling that the cross could stay, the high court said federal judges failed to take proper notice of the government’s decision to transfer the land to a private owner in an attempt to eliminate any constitutional concerns about government-sponsored religion.
In 1934, the Veterans of Foreign Wars placed the 8-foot-tall, white, metal Latin cross on federal land on top of Sunrise Rock in the Mojave National Preserve to honor American soldiers who died in World War I.
Frank Buono, a retired Park Service employee who regularly visited the preserve, sued, “claiming to be offended by a religious symbol’s presence on federal land.”
The district court found that he had standing to sue and that the cross on federal land “conveyed an impression of governmental endorsement of religion.”
While the government’s appeal was pending, Congress passed the Department of Defense Appropriations Act in 2004, which directed the Secretary of the Interior to transfer the cross and the land to the VFW in exchange for privately owned land elsewhere in the preserve.
The 9th Circuit affirmed the judgment, but declined to address the statue’s effect on the lawsuit or the statute’s constitutionality. The judgment became final when the government didn’t seek review.
Buono then returned to court in search of injunctive relief against the land transfer, arguing that the move was an invalid attempt to keep the cross on display.
The court rejected the government’s claim that the transfer was a bona fide attempt to comply with the injunction and granted Buono’s motion to enforce the 2002 injunction. It also barred the government from implementing the land-transfer.
The 9th Circuit again affirmed, but the Supreme Court reversed the decision and sent it back.
“Placement of the cross on federal land by private persons was not an attempt to set the state’s imprimatur on a particular creed,” Kennedy wrote. “Rather, the intent was simply to honor fallen soldiers.
“Moreover, the cross stood for nearly seven decades before the statute was enacted, by which time the cross and the cause it commemorated had become entwined in the public consciousness.
“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” Kennedy wrote. “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.”
He continued: “The Constitution does not oblige government to avoid any public acknowledgment of religion’s role on society.”
In concurring, Justice Samuel Alito added: “The demolition of this venerable, if unsophisticated, monument would also have been interpreted by some as an arresting symbol of a government that is not neutral but hostile in matters of religion and is bent on eliminating from all public places and symbols any trace of our country’s religious heritage.”
In his dissent, Stevens called the remedy to transfer the land one “that was engineered to leave the cross intact and that did not alter its basic meaning.
“Changing the ownership status of the underlying land in the manner … would not change the fact that the cross conveys a message of government endorsement of religion.”
The court’s conservatives won the majority, with Chief Justice John Roberts and Justices Alito, Antonin Scalia and Clarence Thomas joining Kennedy.
Justices Stevens, Stephen Breyer, Ruth Bader Ginsberg and Sonia Sotomayor dissented.
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