Barry, we’re preparing to file an amicus brief in a matter of weeks in a case that I know you are closely watching at the Supreme Court.  The high court agreed in February to take the case of Salazar v. Buono, which involves a challenge to a memorial cross displayed in the Mojave National Preserve in California.

The case will affect the legal standing of those who seek to challenge government displays that include symbols with some religious significance as well as the government’s ability to cure actual or potential Establishment Clause violations through a sale of land to private parties.  Like many of these cases, this one has a long history and a lengthy legal battle.

Over 70 years ago, the Veterans of Foreign Wars (VFW) built a cross to memorialize fallen service members in a remote area that is now part of a federal preserve. After the National Park Service denied a request to build a Buddhist shrine near the cross in 1999 and declared its intent to remove the cross, Congress designated the cross and an area of adjoining property as a national World War I memorial.

With the assistance of the ACLU, a former Parks Service employee challenged the government’s maintenance of the memorial on Establishment Clause grounds. The plaintiff did not object to the cross itself on religious grounds; rather, his objection was ideological, as he thought that the area should be converted into a public forum open for private groups to build a variety of monuments.

After the district court held that the federal government’s display of the cross violated the Establishment Clause, Congress directed the Department of the Interior to convey one acre of property that included the memorial to the VFW in exchange for a five-acre parcel of equal value. It is common for the government to sell property containing symbols with religious significance to private parties in order to cure an actual or potential Establishment Clause violation.

In response, however, the U.S. Court of Appeals for the Ninth Circuit held that the sale of the property to the VFW did not cure the alleged violation of the Establishment Clause because the land could revert back to the federal government if the site ever ceases to be used as a war memorial. When the Ninth Circuit denied the government’s request for the full appeals court to reconsider the case, five judges dissented and noted that the Ninth Circuit’s decision was in conflict with decisions of the Seventh Circuit regarding the government’s authority to sell land to cure an Establishment Clause violation. The dissenters also noted that the cross has the secular purpose of memorializing fallen soldiers.

In asking the Supreme Court to take the case, the government’s Petition for a Writ of Certiorari included the following two questions:

1. Whether respondent has standing to maintain this action where he has no objection to the public display of a cross, but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols.

2. Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands.

I’m sure you’ll agree that this is a very important case with wide-ranging ramifications.  We’re filing our brief with the high court in support of the government’s position in a matter of weeks.  We’ll be representing members of Congress and thousands of Americans who understand the fact that there’s nothing unconstitutional about this memorial.

Our position is clear:  we’ll argue that the cross memorial is constitutional – the land transfer was appropriate and a sound solution to the problem.  We’ll be asking the Supreme Court – which will presumably include Justice Souter’s replacement by the time this case is heard next term – to keep this cross memorial in place.

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