Supreme Court Reverses Injunction Against Mojave Cross

The decision in Salazar v Buono directly relates to faith in the military profession, as its very basic premise has far reaching implications:

Is a cross on government land an unConstitutional endorsement of the Christian faith?

A variety of organizations reported on the Supreme Court ruling Wednesday essentially allowing the World War I memorial Mojave cross to remain standing.  The ruling reversed the appeals court decision initially declaring the cross on federal land unConstitutional, and then declaring the US Congress transfer of land to the VFW invalid due to its attempt to “avoid” the injunction.

The Supreme Court issued six separate opinions, with no single majority opinion.  The decision itself (pdf) is largely procedural, though the net effect will likely be to allow the memorial to stand.

Kennedy, often called the “swing vote” in cases like this, wrote an interesting set of comments into his opinion that may set the foundation for future rulings:

The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework… (emphasis added)

A Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. 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 Americans United for the Separation of Church and State called this logic “malarkey.”)

More worrisome, however, is the position taken by the minority (in the minority by a single chair in the Court).  Their basic position was the opposite: A cross on government land is, by definition, an unConstitutional endorsement of a particular faith:

First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross…This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display.

The opinion of but one Supreme Court justice is all that determines whether the mere presence of a steel-pipe cross on government land violates the Constitution.  Interestingly, Kennedy noted that the destruction of this cross would likely have been viewed as the government being hostile to religion, not neutral toward it, as the dissenting opinion indicated.

A veritable host of organizations, including the AU, the MRFF, the ADF, the ACLJ, the Becket Fund, and the Utah Highway Patrol association filed amicus briefs on one side or the other.

The ruling was fairly narrowly communicated, so it will be interesting to see what, if any, impact this has on the outstanding Mount Soledad memorial case.

Also noted at the Religion Clause.


  • No single majority is a pretty loud statement.

    A cross symbolizes Christianity. Period. and any Christian should take umbrage at Justice Scalia’s and Justice Kennedy’s idea that it is secular.

    Try and mark the grave of a Jewish fallen soldier, and see how the family reacts.

  • albatross – points 2 and 3 are good. ‘No single majority’ refers to the Supreme Court paperwork, not the country.

  • I am very aware of the fact that “no single majority” refers to the SCt decision (or paperwork? as you call it). My statement still stands; it is a loud statement that no two justices had a singular reason for deciding this case the way that they did.

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