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 in place."

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 1998.

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 unresolved.

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