Court hears arguments about cross on park land

WASHINGTON — The Supreme Court appeared divided between conservatives and liberals Wednesday over whether a cross on federal park land in California violates the Constitution.

Several conservative justices seemed open to the Obama administration’s argument that Congress’ decision to transfer to private ownership the land on which the cross sits in the Mojave National Preserve should take care of any constitutional questions.

“Isn’t that a sensible interpretation” of a court order prohibiting the cross’ display on government property? Justice Samuel Alito asked.

The liberal justices, on the other hand, indicated that they agree with a federal appeals court that ruled that the land transfer was a sort of end run around the First Amendment prohibition against government endorsement of religion.

Justice Anthony Kennedy, often the decisive vote in these cases, said nothing to tip his hand.

The tenor of the discussion suggested that the justices might resolve this case narrowly, rather than use it to make an important statement about their view of the separation of church and state.

The cross, on an outcrop known as Sunrise Rock, has been covered in plywood for the past several years following federal court rulings that it violates the First Amendment prohibition. Court papers describe the cross as being 5 feet to 8 feet tall.

A former National Park Service employee, represented by the American Civil Liberties Union, sued to have the cross removed or covered after the agency refused to allow erection of a Buddhist memorial nearby. Frank Buono describes himself as a practicing Catholic who has no objection to religious symbols, but he took issue with the government’s decision to allow the display of only the Christian symbol.

Easter Sunrise services have been held at the site for decades.

The 9th U.S. Circuit Court of Appeals in San Francisco has repeatedly ruled in Buono’s favor. Congress has intervened on behalf of the cross, prohibiting the Park Service from spending money to remove the cross, designating it a national memorial and ultimately transferring the land to private ownership.

The appeals court invalidated the 2004 land transfer, saying that “carving out a tiny parcel of property in the midst of this vast preserve — like a doughnut hole with the cross atop it — will do nothing to minimize the impermissible governmental endorsement” of the religious symbol.

Veterans groups are on both sides of the case, with some worrying that other religious symbols that serve as war memorials could be threatened by a ruling in Buono’s favor. Jewish and Muslim veterans, by contrast, object that the Mojave cross honors Christian veterans and excludes others.

The administration wants the court to rule that Buono had no right to file his lawsuit because, as a Christian, he suffers no harm from the cross. His main complaint is that others may feel excluded, the government says.

Alternatively, the administration says the land transfer took care of any First Amendment problem.

The case is Salazar v. Buono, 08-472.

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