Another Cross in Limbo Awaiting Court Decision

By Nathan Burchfiel | July 7, 2008 | 8:06 PM EDT

( - In a case similar to one decided less than two months ago, Christian lawyers and activists are awaiting a court decision to determine the fate of a war memorial in California's Mojave Desert that features a cross.

The monument, originally erected in 1934 by the Veterans of Foreign Wars to honor the "dead of all wars," features of a cross planted at the top of a hill in the Mojave National Preserve. The land under the cross was originally owned by the government, and the structure is recognized by the federal government as a war memorial.

The American Civil Liberties Union of Southern California challenged the memorial, arguing that it violated the Establishment Clause of the First Amendment, which instructs Congress to "make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The Ninth Circuit Court of Appeals instructed the Department of the Interior to dismantle the cross.

But in an attempt to save the memorial from destruction, an act of Congress in 2004 authorized the sale of the land to private parties. The ACLU then challenged the land transfer proposal.

Federal District Court Judge Robert Timlin ruled in 2005 that "the government has engaged in Herculean efforts to preserve the Latin cross on federal land and ... the proposed transfer of the subject property can only be viewed as an attempt to keep the Latin cross atop Sunrise Rock without actually curing the continuing Establishment Clause violation."

The cross is currently obscured to comply with a court order mandating that it be covered up during the legal battles, according to Alliance Defense Fund, one of the Christian legal groups that voiced its support for the memorial.

Government officials covered the crossbeam section of the memorial with boards, making it appear like a box on a stick instead of a cross.

Both sides of the debate now await the Ninth Circuit's ruling on the legitimacy of the land transfer.

A spokesman for the ACLU of Southern California did not respond to requests for comment Tuesday.

In a 2001 release announcing the original lawsuit about the cross, staff attorney Peter Eliasberg wrote that "the federal government should not offer public land - owned collectively by people of every faith and of no faith - as a site for the advertisement and promotion of Jesus Christ, Buddha, Pope John Paul II, or any other particular religious figure."

"If any person was allowed to place a permanent, free-standing expression of his or her religious or political viewpoint at this site, we would have no objection," Eliasberg added, "but that is not the case here."

"No other group is allowed to erect a religious symbol. This creates a situation in which the federal government favors Christian expression over any other," he said.

Steve Fitschen, president of the National Legal Foundation, told Cybercast News Service he was confident the cross does not violate the Establishment Clause and that the land transfer will be approved by the Ninth Circuit.

"Some people think that every vestige of our religious heritage should be removed," Fitschen said. "We don't think that's what the First Amendment says at all."

"The framers would be rolling over in their graves" at the ACLU's opposition, he added.

The National Legal Foundation, a Christian law group, filed a brief with the court supporting the government -- and the cross -- against the ACLU.

Fitschen said that while the Ninth Circuit has a reputation for making liberal decisions that are later overturned, he believes that other court rulings in similar cases will convince Ninth Circuit judges to rule in favor of the cross.

As Cybercast News Service previously reported, the ACLU mounted an effort to remove a cross on Mt. Soledad in San Diego, because it was displayed on public property. In order to avoid church-state separation problems, the land was sold by San Diego to the federal government.

The ACLU challenged the land transfer deal, but the California Supreme Court in February declined to hear the case, handing Christian attorneys a victory in the lengthy battle.

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