Supreme Court to consider fate of memorial

BY ADELLE M. BANKS Comments 0
Published: October 3, 2009

WASHINGTON — Does an offended observer who drives by a cross-shaped war memorial in the middle of the desert have a right to call for its removal? And can that 7-foot cross stand without violating the Constitution’s prohibition of government establishment of religion?

The Supreme Court will consider those questions in the case of a cross-shaped World War I memorial that sits in California’s Mojave National Preserve when it hears arguments Wednesday.

Church-state separationists are watching closely, along with veterans organizations concerned about how they are represented by memorials — and whether the case could lead to removal of other monuments.

The case has landed in the high court’s hands eight years after Frank Buono, a former assistant superintendent of the preserve, first filed suit, saying he was offended that other religions beyond his Christian faith were not represented.

As Buono’s case wound its way through the courts, Congress passed laws preventing its removal, naming it a national memorial and, lastly, calling for a transfer of the surrounding property to the private ownership of the Veterans of Foreign Wars, who erected it in 1934.

In the government’s eyes, the transfer resolved the matter in a "sensible” and constitutional manner.

But an appeals court ruled that that transfer did not solve the church-state problems that have long been at the center of the case.

"In urging this Court to destroy long-standing memorials across this nation or else place them on the auction block, (Buono) seeks not neutrality, but hostility toward religion,” argued Solicitor General Elena Kagan, in a brief submitted to the court.

The American Civil Liberties Union, which represents Buono, said the transfer is insufficient, in part because the cross remains a national memorial even if it is on private land.

"As one of the few displays that Congress has designated a national memorial, the cross necessarily will reflect continued government association with the pre-eminent symbol of Christianity,” argued Peter Eliasberg of the ACLU Foundation of Southern California, in the ACLU’s brief before the high court.

The ACLU suggests a "neutral transfer to a private party” could undo what it considers "favoritism” to the VFW.

Beyond the Veterans of Foreign Wars, several veterans groups have weighed in, including Muslim veterans organizations in a rare appeal to the high court. Douglas Laycock, a University of Michigan Law School professor of constitutional law, filed a brief on their behalf that says a "government-sponsored cross plainly takes sides between faiths.”

They note that they’re not seeking removal "of all crosses from government cemeteries,” but they want government neutrality.

"They don’t want to take anything away from the Christians, but they don’t want to be ignored either,” Laycock said. "They’re over there dying for the country, too.”