06/28/2010 05:12 am ET Updated May 25, 2011

Supreme Court Says War Memorial Cross Can Stay

By Adelle M. Banks
Religion News Service

WASHINGTON (RNS) A divided Supreme Court on Wednesday (April 28) overruled a lower court that had said Congress erred when it transferred a war memorial cross in the Mojave National Preserve into private hands.

The 5-4 ruling means the five-foot-cross, currently encased in plywood as the case made its way through the legal system, can remain while a lower court continues to consider the case.

Justice Anthony Kennedy, writing for the court's 5-4 majority, said, "The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm."

Kennedy said the district court ruling--which could have resulted in the removal of the cross--did not focus enough on the memorial's nonreligious context. The cross was erected in the California preserve primarily to memorialize American servicemen who died in World War I and not "to promote a Christian message," Kennedy wrote.

Justice Samuel Alito, in an opinion partly concurring with the plurality, said the cross had been there for almost 70 years and Congress was aware its removal might be viewed as a "sign of disrespect" to the soldiers it was designed to honor.

In an additional opinion, joined by Justice Clarence Thomas, Justice Antonin Scalia said the transfer to private hands "best serves the public interest." Chief Justice John Roberts sided with the majority.

But in a lengthy dissent, outgoing Justice John Paul Stevens said the transfer of the property to the Veterans of Foreign Wars would not remove the government's religious endorsement. That remains, he said, especially since Congress declared the cross to be a national memorial.

"Making a plain, unadorned Latin cross a war memorial does not make the cross secular," Stevens wrote. "It makes the war memorial sectarian."

Joining Stevens' dissent were Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Stephen Breyer wrote a separate dissenting opinion.

The case now will be returned to the district court, which must further address the land transfer.

The case, Salazar v. Buono, began in 2001 when Frank Buono, a former assistant superintendent of the preserve, filed suit, saying he was offended other religions beyond his own Christian faith were not represented near the memorial site.

Legal groups representing veterans' organizations--who had feared a court ruling might impact crosses at sites such as Arlington National Cemetery--hailed the decision but still voiced concern about the case's long-term impact.

"I think that there are some statements in here which are encouraging from Kennedy but the issue ... clearly has not been decided yet by the court about veterans' memorials nationwide with religious imagery," said Kelly Shackelford, president and CEO of Liberty Institute, which represented the Veterans of Foreign Wars and other groups.

Americans United for Separation of Church and State viewed the high court's ruling as a defeat for church-state separation.

"I'm very disappointed," said the Rev. Barry Lynn, executive director of Americans United. "The court majority was clearly determined to find any bogus reason to keep this religious symbol in a public park."