Appeals Court Backs Ruling That Desert Cross Is Unconstitutional

A federal appeals court on Monday upheld a lower court ruling that a large white cross in the middle of the Mojave National Preserve violates the the U.S. Constitution.

The 9th Circuit Court of Appeals in Pasadena “took a look at this issue and concluded that the case couldn’t be clearer; a religious symbol on government property violates the Constitution,” said Peter Eliasberg, managing attorney for the ACLU of Southern California. “At every level, the courts have rightly agreed with this principle.”

In July 2002, responding to a suit by the American Civil Liberties Union to have the cross removed, a U.S. District Court in Los Angeles held that the presence of the 5-foot-tall Mojave Desert cross on federal land near the Nevada border was unconstitutional. The establishment clause of the 1st Amendment requires the separation of church and state.

The painted metal cross stands on a rocky slope called Sunrise Rock, about 11 miles south of Interstate 15. The cross was erected by the Veterans of Foreign Wars in 1934 to honor veterans of World War I.

The lower court’s ruling in the ACLU’s favor was appealed by a group that included Secretary of the Interior Gale Norton, Jonathan Jarvis, director of the Interior Department’s Pacific West Region, and Mary Martin, superintendent of the national preserve.

In the months that followed, Congress enacted legislation, sponsored by Rep. Jerry Lewis (R-Redlands), requiring the Department of the Interior to transfer the land on which the cross sits to a local Veterans of Foreign Wars post in exchange for a privately owned 5-acre parcel elsewhere in the preserve.

The appellants then argued that because of the impending transfer of the property to private ownership, the constitutional issues were moot and the appellate court should not render a decision on them.

But Appellate Judge Alex Kozinski, who wrote Monday’s opinion, disagreed.

“This case is not yet moot and may not be for a significant time, as defendants conceded that the land transfer could take as long as two years to complete,” Kozinski wrote.

He also noted that the legislation authorizing the swap contains provisions under which the land could be returned to federal ownership.

Still unanswered, he said, is the question whether the presence of a religious symbol on formerly public land transferred to private ownership still violates the Constitution.

Religious symbols are not unknown on national parkland.

The Chapel of Transfiguration was allowed to remain at Grand Tetons National Park in Wyoming after it was found to be a structure of historical significance.

A National Park Service study determined that the Mojave cross, which began life as two wooden planks and is now made of metal pipe, has changed over the years and lacks historical significance.

Last week, Los Angeles County supervisors decided to remove the tiny gold cross from the county seal rather than defend it against a threatened ACLU lawsuit. Advised by county lawyers that the cross on the seal might not withstand a court challenge, supervisors followed the lead of the city of Redlands, which agreed to remove a cross from its logo after the ACLU threatened legal action.