The case involves a cross -- a predecessor of which was first erected as a World War I memorial in 1934 -- standing on government-owned land in California’s Mojave National Preserve.It seems as though the issue here is the legislative efforts to give the land in which the cross stands to the Veterans of Foreign Wars, in order to claim that the cross doesn't stand on government property, and therefore it isn't government establishment of Christianity. The 9th Circuit Court ruled against the law ordering the exchange of government land with the VFW:
The current version was built of painted metal pipes by a local resident in 1998. The next year the National Park Service, which oversees the land, denied an application to build a Buddhist shrine near the cross.
The agency studied the history of the monument and, determining that it did not qualify as a historic landmark, announced plans to remove it. Congress intervened with a series of amendments to spending bills attempting to preserve the cross.In 2001 Frank Buono, a former Park Service employee who once worked at the preserve, filed suit with the help of the American Civil Liberties Union. They claimed that the cross violated the Constitution’s ban on government establishment of religion.
“We previously held that the presence of the cross in the preserve violates the Establishment Clause [of the First Amendment], wrote Judge Margaret McKeown in that decision. “We also concluded that a reasonable observer aware of the history of the cross would know of the government’s attempts to preserve it and the denial of access to other religious symbols.”Moreover:
“Under the statutory dictates and terms that presently stand, carving out a tiny parcel of property in the midst of this vast preserve -- like a donut hole with the cross atop it -- will do nothing to minimize the impermissible governmental endorsement.”With the retirement of moderate Sandra Day O'Connor and the ensuing appointment of conservative Samuel Alito, a lot of people will be interested to see how this case will be adjudicated.
Update: David Savage of the Los Angelos Times has this write-up on the case.
Update II: Great debate on the case at Beliefnet's Lynn v. Sekulow. Other coverage at the Philadelphia Inquirer and Blog from the Capital (1 , 2, and 3).
Update III: Reader aznew emailed me the link to this analysis on the case from the First Amendment Center.