Court bans transfer of cross in Mojave Desert
By Julia Cheever
September 6, 2007
A federal appeals court in San Francisco today blocked a planned
land exchange that would have put a Christian cross on national
parkland in the Mojave Desert into private hands.
The 9th U.S. Circuit Court of Appeals said the land exchange,
provided for in a law passed by Congress, violates the constitutional
requirement of separation of church and state because a government
agency, the National Park Service, would continue supervision
of the cross.
The court upheld a lower court injunction barring the land exchange
and prohibiting display of the cross on Sunrise Rock in the Mojave
National Preserve in southeastern California.
Circuit Judge Margaret McKeown wrote, "The government's
longstanding effort to preserve and maintain the cross atop Sunrise
Rock lead us to the undeniable conclusion that the government's
purpose in this case is to evade the injunction and keep the cross
The 8-foot-tall Latin cross made out of metal pipes painted white
is currently covered with a plywood box to comply with the injunction.
The cross was first built of wood in 1934 to honor World War I
veterans and has been replaced several times, most recently in
The appeals court upheld a federal trial judge's ruling that
the cross appeared to be a government endorsement of religion
and to honor servicemen of only one religion.
The preserve is managed by the National Park Service and covers
1.6 million acres. More than 90 percent of the preserve is federally
owned, but there are some parcels of private land within the preserve.
The law passed by Congress in 2002 would have transferred the
cross and 1 acre of land to a private owner in exchange for 5
other acres and would have established the cross as a national
memorial to servicemen, supervised by the National Park Service.
Congress passed the law after public display of the cross was
challenged in a lawsuit filed in 2001 by Frank Buono, a former
assistant superintendent of the preserve who initiated the case
as a private citizen.
ACLU attorney Peter Eliasberg said, "The ruling stands for
the principle that you can't end religious favoritism by transferring
land in a way that maintains the religious favoritism by designating
the cross as a national monument."
The appeals court has considered several other challenges to
crosses on public land over the years.
A 13-year battle over a 103-foot-tall cross on Mount Davidson
in a city park in San Francisco ended in 2003 when the U.S. Supreme
Court refused to consider two atheists' challenge to the city's
sale of the cross to a private Armenian-American group.
Earlier in the case, the 9th Circuit in 1996 agreed with a claim
by eight citizens and religious leaders that city ownership of
the cross was unconstitutional. The sale of the cross at a public
auction in 1997 settled the lawsuit and was upheld by the 9th
Circuit in 2002.
A dispute about a cross on Mount Soledad in San Diego is still
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