Critics say the cross violates the Constitution's ban on government establishment of religion. The case will be argued Wednesday.
The Veterans of Foreign Wars' Death Valley post first built the cross at Sunrise Rock in 1934 to honor Americans who died in combat in World War I. The most recent version of the cross was erected 11 years ago by a man named Henry Sandoz.
Neither the VFW nor Sandoz ever owned the land where the cross is located — nor did they have permission to build on the land.
But in 1999, a Buddhist asked the National Park Service for permission to erect a Buddhist shrine on federal land near the cross. The agency refused, setting in motion a series of events in the courts and Congress, culminating in Wednesday's Supreme Court hearing.
A Former Park Employee's Unease
Frank Buono, a retired assistant park service superintendent, was assigned to the Mojave preserve when it first opened. He drove by the cross often, and although a veteran himself and an observant Catholic with crosses in his own home, he was troubled. When he retired, he went to the American Civil Liberties Union with his concerns.
"It's one thing to have crosses in one's house or in one's churches, but another to have one permanently affixed to land that belonged to everyone," Buono says.
The park service actually agreed, and wanted to take the cross down — but Congress stepped in. Buono, represented by the ACLU, eventually went to court and won. Two lower courts ruled that the existence of the cross itself on public land amounted to the government endorsing one religious view — and therefore violated the Constitution's ban on establishment of religion.
Congress then passed a law that set aside the area of the preserve where the cross stood, and transferred the land to the Veterans of Foreign Wars. Congress also mandated that the cross be maintained — or control of the land would revert to the federal government.
The lower courts ruled that the land transfer was an unconstitutional end-run that perpetuated the government's endorsement of a religious symbol. The government appealed to the Supreme Court.Congress designated the cross as one of the nation's 45 national memorials — along with the Lincoln Memorial, the Washington Monument and Mount Rushmore.
A Monument, But For Whom?
Advocates for the cross contend it is not a religious symbol.
"For many, many years, we have used the symbol of a Latin cross to memorialize fallen veterans," says Ted Cruz, who represents the Veterans of Foreign Wars and the American Legion.
Douglas Laycock, who filed a brief on behalf of Muslim veterans, counters that the cross only honors the Christian dead.
"The cross is a symbol of the Christian belief that the faithful will rise from the dead," Laycock says. "You take that away and it makes no sense as a symbol to honor the dead."
But there's much more than one cross in the desert at issue in this case.
The VFW and other veterans groups contend that if the Supreme Court rules against the cross, bulldozers across the country will soon be annihilating other war memorials, such as Arlington National Cemetery's Argonne Cross Memorial and Canadian Cross of Sacrifice, as well as crosses on headstones and elsewhere.
"Arlington Cemetery is on public land, and in the midst of Arlington Cemetery, the Cross of Sacrifice stands," says Cruz.
"If the ACLU is correct — if the Ninth Circuit Court of Appeals is correct — then the crosses that stand on Arlington Cemetery ... must be torn down as well. And that is an extreme and radical view, and it is not consistent with the Constitution of the United States."
Lawyers for the ACLU call that "scare-mongering." Peter Eliasberg, managing attorney for the ACLU of Southern California, notes that the only instance in which the ACLU ever challenged a military gravesite was to ensure that the family had a choice of symbol for the headstone.
Arlington offers 64 different religious symbols for headstones — including those for Christians, Jews, Muslims, Buddhists and Wiccans.
Context matters, Eliasberg says. And given the range of religious symbols in the cemetery, he doesn't think "anyone would come in and then see a cross like the Argonne Cross and think, 'Well, the government is favoring Christianity' — because there are so many other religious symbols there."
In contrast, Eliasberg says, the cross at Sunrise Rock is the only national memorial to commemorate World War I veterans — thousands of whom were not Christian.
The Argument: What's At Stake?
As powerful as these pro and con arguments are, the Supreme Court may focus more on a technical question that could resolve not only this case but potentially all others involving religious symbols — and perhaps more than that.
It is the gatekeeping question of standing: Who has standing in court to challenge the placement of a religious symbol on public property? The government maintains that an individual who is offended by a religious symbol has not suffered a real injury that justifies a court challenge.
In addition, the government contends that the congressional transfer of the land to the VFW ends any government endorsement of religion. The ACLU counters that the government still favors the cross, by the terms of the land transfer, which designates the cross as a national memorial and declares that the VFW only keeps the land if it also maintains the cross.
If the government and the VFW win on this point, it could mean that for all practical purposes, a government — whether local, state or federal — can put up whatever religious symbols it wants, and there would be no way to challenge it in court.
"If they want to put a cross on every street corner, they could do that," says Laycock. "There would be no limits on abuses. Government could promote religion as much as it wanted to. And if taking offense at a display doesn't give standing, the next step might be to say that taking offense at a religious ceremony or prayer isn't enough to give standing."
The VFW's Ted Cruz seems to acknowledge that a Supreme Court decision on the standing question could eradicate almost all challenges to religious symbols, like crosses and Nativity scenes. He sees these challenges as representing a hostility to religion that the Founding Fathers never contemplated.
"There is no doubt that the past several decades have seen a relentless wave of litigation, as individual plaintiffs have, over and over again, sought to scour the public square and to remove any reference to faith or the Almighty," Cruz says.
"It is manifested in cases like this. ... That extreme view of the Constitution is utterly inconsistent with the views of the framers of our Constitution ... and with the longstanding views of the American people."
Laycock concedes these concerns probably matter only to a relative few.
"Religious liberty is, in part, about protecting all the touchy people, the people who take these religious statements more literally and more seriously than the rest of us," he says.
"They are the ones who are most in need of protection, and they exist in every faith."
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