Origins: The decade-long legal battle over the Mojave Desert Cross exemplified, perhaps better than any other case, that U.S. courts have yet to work out a clear rule of law governing religious displays on public land. At stake in the case was whether an
8-foot-tall cross would be allowed to remain on land within the Mojave National Preserve in Southern California.
The first Mojave cross was a wooden one erected in 1934, but Sunrise Rock, the site on which the current version of the Mojave cross (fashioned out of white-painted metal pipe) now stands, became federal land in 1994 as a part of the Mojave Land Preserve, which encompasses 1.6 million acres of the Mojave Desert in southeastern California and is administered by the National Park Service (NPS).
Back in 1999, Frank Buono brought the Mojave cross to the attention of the American Civil Liberties Union (ACLU). The ACLU then contacted the NPS and requested the cross's removal on the grounds that its display on federal land violated the Constitution's establishment clause (because although the cross was maintained as a war memorial, its specifically Christian symbolism did not apply to all those whom it ostensibly represented, as not all veterans were Christians):
Memorials should be erected in honor of all veterans who served their country, not only for some veterans. Obtrusive, permanent religious displays on government property focusing on the Latin cross, for example, ignore the diversity of religion and the wide array of religious beliefs held by veterans and service members. Even within the Christian faith, many sects do not recognize the Latin cross as their preferred religious symbol. The ACLU maintains that such religious memorials constitute excessive government entanglement with religion in violation of the Establishment Clause.
After an exchange of letters and phone calls between the ACLU and the NPS across several months, the matter was seemingly closed when the NPS sent the ACLU a letter in October 2000 announcing its decision to remove the cross within the next few months. However, in December 2000 Rep. Jerry Lewis of California added a rider to a House appropriations bill specifying that federal funds could not "be used by the Secretary of the Interior to remove the white cross located within the boundary of the Mojave National Preserve in southern California," so the cross remained in place.
In March 2001, the ACLU filed a lawsuit in federal court on behalf of Buono, seeking to compel the removal of the Mojave cross. In July 2002, a U.S. District Court Judge ruled in the ACLU's favor, stating that the
"presence of the cross on federal land conveys a message of endorsement of religion."
However, removal of the cross was again circumvented when Rep. Lewis inserted language into a 2002 defense appropriations bill declaring the Mojave Cross site to be a national memorial and arranged a deal to transfer an acre of land surrounding the cross to the Barstow Veterans of Foreign Wars (thus
technically removing the cross from federal land) in exchange for five acres of land donated by a private landowner who owned property within the preserve.
The ACLU argued that the land transfer was unconstitutional, and in June 2004 the Ninth U.S. Circuit Court of Appeals again ruled in the ACLU's favor, rejecting the land transfer proposal as an act that "would leave a little donut hole of land with a cross in the midst of a vast federal preserve" and upholding the July 2002 decision that the "primary effect of the presence of the cross" was to "advance religion" and therefore violated the establishment clause of the First Amendment. The Bush administration appealed that decision, contending (among other points) that Frank Buono was an Oregon resident and therefore lacked legal standing to sue over a cross situated in California, and that the land transfer was "an eminently sensible and constitutionally permissible way of resolving any establishment clause problem."
In February 2009 the Supreme Court agreed to hear the Mojave Memorial Cross case (Salazar vs. Buono), while the cross itself remained covered by a large plywood box as both sides prepared their cases for arguments. In April 2010, the U.S. Supreme Court ruled by a 5-4 vote that the Mojave cross did not violate the constitutional separation of church and state and that Congress acted properly when it tried to transfer the land around the cross to veterans groups. A few weeks later, the cross disappeared and was presumed to have been stolen; the following day, the Barstow Desert Dispatch received an anonymous communication from someone claiming to know the thief, who provided the following explanation for why the cross was removed:
1. The cross in question was not vandalized. It was simply moved. This was done lovingly and with great care.
2. The cross has been carefully preserved. It has not been destroyed as many have assumed.
3. I am a Veteran.
4. A small non-sectarian monument was brought to place at the site but technical difficulties prevented this from happening at the time the cross was moved to its new location.
5. The cross was erected illegally on public land in 1998 by a private individual named Henry Sandoz. Since then the government has actively worked to promote the continued existence of the cross, even as it excluded other monuments from differing religions. This favoritism and exclusion clearly violates the establishment clause of the US Constitution.
6. Anthony Kennedy desecrated and marginalized the memory and sacrifice of all those non-Christians that died in WWI when he wrote: 'Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles — battles whose tragedies are compounded if the fallen are forgotten.' The irony and tragedy of that statement is unique.
7. Justice Kennedy's words in particular and others like them from the other Justices caused me to act.
8. At the time of its removal there was nothing to identify the cross as a memorial of any kind, and the simple fact of the matter is that the only thing it represented was an oddly placed tribute to Christ. This cross evoked nothing of the sort that Justice Kennedy writes of, it was in the end simply a cross in the desert.
9. Discrimination in any form is intolerable, as is hatred.
10. Discrimination or hatred based upon religion should be despised by all Americans, and offering that this event was caused by hatred or malice is simply ignorance of the actual intent.
11. Despite what many people are saying, this act was definitively not anti-Christian. It was instead anti-discrimination. If this act was anti-Christian, the cross would not have been cared for so reverently. An anti-Christian response would have been to simply destroy the cross and leave the pieces in the desert.
12. We as a nation need to change the dialogue and stop pretending that this is about a war memorial. If it is a memorial, then we need to stop arguing about the cross and instead place a proper memorial on that site, one that respects Christians and non-Christians alike, and one that is actually recognizable as a war memorial.
13. If an appropriate and permanent non-sectarian memorial is placed at the site the cross will be immediately returned to Mr. Sandoz.
14. Alternatively, if a place can be found that memorializes the Christian Veterans of WWI that is not on public land the Cross will promptly be forwarded with care and reverence for installation at the private site.
15. In short this has happened because as Abraham Lincoln said: 'To stand in silence when they should be protesting makes cowards out of men.' Perhaps this was an inappropriate form of protest if so I humbly request your forgiveness and understanding for the actions that I have taken here."
