U.S. Supreme Court To Decide Fate Of Mojave Cross

By Katharine Russ

On October 7, 2009, the U.S. Supreme Court will hear oral arguments on the “Mojave Cross”  (Salazar v Buono) that has been standing in a remote area of the 1.6 million acre Mojave Desert Preserve since 1934. At issue are two questions: 1. Whether an individual has Article III standing to bring an Establishment Clause suit challenging the display of a religious symbol on government land and 2. if the Act of Congress directing the land be transferred to a private entity is a permissible accommodation.

The cross was erected in 1934 by a group of World War I veterans in memory of fallen soldiers of WWI. For 50 years, John Riley Bembry, a World War I medic, cared for the cross. When Bembry died in 1984, Henry Sandoz. and his wife, Wanda, resumed its care and have done so until today.     

The Court battle over this cross has been going on since 1999 and has been the subject of several pieces of legislation over the years but for 65 years prior, the cross stood without any Court challenges. In 2001, Frank Buono, a former National Park Service employee filed a suit claiming an “Establishment Clause” violation.

In 2002, the District Court held that Buono ‘has standing because he was “subjected to an unwelcome religious display, namely the cross” and ordered the cross to be removed.

With the help of their Congressman in 2002, the Sandoz’s were able to trade five acres of their land within the Preserve for one acre where the cross stands. The land was transferred to VFW Post 385E pursuant to a Congressional designation.

Wanda Sandoz said, “This has been going on for over ten years now. The cross was covered in 2002 or 2003. Originally it had a canvas bag over it but that was too easy to get off. We were accused of removing it, but we didn’t have to because others removed it.”

In September 2007, the Court of Appeals affirmed the District Courts judgement reasoning “that Buono had suffered a “concrete, personalized injury” rather than “an abstract generalized grievance,” because he “will tend to avoid Sunrise Rock on his visits to the Preserve as long as the cross remains standing.” The Court of Appeals further invalidated the land transfer and ordered the Government to comply with the original injunction. The Court, later in 2008, refused to hear the case again.

Peter Eliasberg, Counsel of Record, ACLU of Southern California, said, “My client lives in Arizona. There is no argument that client doesn’t have standing because he doesn’t live in the Preserve. He regularly visits the Preserve.  He is offended by the fact that the government has engaged in this sectarian religious endorsement.

He has a very large hand in the Preserve actually becoming a Preserve. He was a park ranger there so his connection to the area is as great or greater than anybody who lives there. And the fact the court has regularly said that people have standing to bring environmental challenges with respect to national parks or preserves whether they live there or not. The cross is the preeminent symbol of Christianity and that symbol has no religious meaning to any other religion other than Christianity. To call it a war memorial does not change the fact that it is the symbol of Christianity and to tell the family members of the 250,000 Jews who fought for the United States in World War I that they are being honored by a symbol that says “Christ is the Messiah” is really offensive to them.”

In a February 2009 Press Release, Chief Legal Counsel of Liberty Legal Institute, Kelly Shackleford’s amicus brief of November 2008 asked for certiorari on behalf of the Veterans of Foreign Wars of the United States (VFW), The American Legion, the Military Order of the Purple Heart (MOPH), Veterans of Foreign Wars. Department of California, and American Ex-Prisoners of War (AXPOW).

“The VFW erected the memorial and originally owned the land on which the memorial sits, and had donated it to the government in 1934.  The ACLU sued for removal of the veterans’ memorial on the grounds that it is unconstitutional, and the Ninth Circuit Court of Appeals agreed and ordered the memorial and cross dismantled.” The cross still stands covered by a wooden box.

The United States Supreme Court agreed to hear arguments on the case.

Shackleford said,“It is bad enough to say that the veterans’ memorial is unconstitutional, but it is outrageous to say that the government cannot give the monument back to the people who spilled their blood and put it there in the first place.”

The VFW fears an ACLU victory will put other veterans memorials at risk of removal. Among those, the Canadian Cross of Sacrifice in Arlington National Cemetery donated by Canadian Prime Minister MacKenzie King in 1925.

The inscription on the cross reaffirms the sentiment regarding Americans who served in the Canadian Armed Forces. Following World War II and the Korean War, similar inscriptions on other faces of the monument were dedicated to the Americans who served in those conflicts.

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Robert Rosebrock

U.S. Army, 1965-67, Schofield Barracks, Hqs., U.S Army, Hawaii. Director, The Veterans Revolution, Captain, the Old Veterans Guard, and Director, We the Veterans.