In 1934, a small band of veterans of the First World War gathered at Sunrise Rock, an outcropping of stone in the Mojave Desert. There they raised a modest, handmade white, wooden cross, about five-feet high. At the foot of the cross they placed a plaque that read, “The Cross, Erected in Memory of the Dead of All Wars. Erected 1934 by Members of Veterans of Foreign Wars, Death Valley Post 2884.”
Many of these men had moved to Death Valley following the Great War on the advice of doctors, who thought the warm, arid climate would help their injuries heal. For the most part, they lived a humble existence: Some took up mining; some built small ranches. John Riley Bembry was typical. Born in 1899, he had been a medic in the war and then dabbled in prospecting, living in a shack made of wood planks and corrugated aluminum seven miles from Sunrise Rock. He was a man of little religious conviction, but he agreed to look after the memorial.
Over the years, the cross sometimes fell prey to vandals. In one such incident, both the plaque and the cross were taken and Bembry replaced the wooden cross with one made of steel pipes. He did not replace the plaque. In 1983, his health failing, Bembry approached a local man he’d befriended, Henry Sandoz, and asked him to assume care of the memorial. Sandoz agreed, and Bembry died a few months later. Sandoz still looks after the memorial today. But perhaps for not much longer. The Supreme Court recently heard oral arguments in Buono v. Salazar, a case in which a retired National Park Service employee, Frank Buono, is demanding that the government–specifically Ken Salazar, the secretary of the Interior–take down the cross.
On the surface, Buono is a relatively straightforward Establishment Clause fight–the Establishment Clause of the First Amendment stipulates that “Congress shall make no law respecting an establishment of religion.” The Sunrise Rock cross is, indisputably, a Christian symbol. It sits on land that is part of the Mojave National Preserve, which is operated by the National Park Service. But the particular facts of the case–both the origins of the suit and the course of the litigation–demonstrate how the modern machinery of civil liberties law abets a certain type of antireligious passion.
Sunrise Rock did not always belong to the Park Service. When the Death Valley VFW dedicated its memorial, the land was in the public domain. Which is to say that, after California achieved statehood, all of the unclaimed land was given to the government’s General Land Office–the same body that handed out plots to homesteaders in the 1860s. It administered the empty land in the desert, assigning mining claims to prospectors and handing out grazing rights to ranchers. In 1994 the land was transferred out of the public domain and to the National Park Service so it could create the Mojave National Preserve.
At 1.6 million acres, the preserve is one of America’s largest national parks. The federal government owns roughly 90 percent of it. The state of California owns 43,000 acres, and 86,000 noncontiguous acres are owned by a thousand private landowners. These plots are dotted indiscriminately throughout the preserve with no markings or signage. To visitors, they’re indistinguishable from the rest of the land.
Frank Buono worked at the preserve in the mid-1990s, before retiring in 1997. In 1999, the Park Service received a strange note from “Sherpa San Harold Horpa.” Horpa wanted to install a Buddhist shrine close to the Sunrise Rock cross. Perhaps sensing that they were being led into an Establishment Clause trap, the Park Service responded to Horpa with a letter saying that he was not allowed to erect a religious symbol on federal land and that violation of this command could result in “citation and/or arrest.” A handwritten aside on the letter informed Horpa that the Park Service knew about the memorial cross near where Horpa wanted his shrine and stated, “It is our intention to have the cross removed.”
As it turns out, “Sherpa San Harold Horpa” was actually Herman R. Hoops, another retired Park Service employee and a longtime friend of Frank Buono’s. Four months after the Park Service denied the Horpa/Hoops request, they received another letter, this time from the ACLU. The ACLU threatened suit if the cross was not removed. A year later, with the cross still in place, the ACLU lawyers sent another letter, giving the Park Service 60 days to tear down the cross–or else. “If we do go forward with a lawsuit,” the letter intoned (somewhat dubiously), “a court not only would order the government to remove the cross, but it also likely would assess damages against those responsible government officials who knew about the cross and yet did nothing about it.” Park Service officials rushed to tell the ACLU that they fully intended to do away with the cross.
The affair came to the attention of Congressman Jerry Lewis, in whose district Sunrise Rock sits. He mounted a guerrilla campaign to save the cross and attached a provision to a 2000 appropriations bill which mandated that no government funds could be used to remove the memorial. With the Park Service’s hands tied, Buono and the ACLU filed a federal case in California’s Central District Court.The district court quickly found in Buono’s favor and ordered the Department of the Interior (which oversees the National Park Service) to remove the cross. The Park Service covered it with a large, wooden box while Interior lawyers appealed the decision to the Ninth Circuit.
While the Ninth Circuit deliberated–they eventually upheld the district court decision ordering the cross’s removal–the government adopted the sensible approach of trying to make the problem go away. Congress passed a law instructing the Department of the Interior to trade the acre of land around Sunrise Rock to the VFW for an equitable parcel. (Henry Sandoz was willing to donate the land.) The government placed no strictures on the VFW save that they use the land for “a national memorial commemorating United States participation in World War I.” The VFW was free to keep the cross as part of the memorial or to discard it any time, entirely at its own discretion. It was an elegant solution. The cross would be on private land and its fate in private hands. It would no longer be the government’s headache. In his lawsuit, moreover, Buono had claimed that he didn’t object to the cross per se, but only its presence on government land, and so this would solve his problem, as well. Even better, swapping land to escape a potential Establishment conflict had precedent in the Seventh Circuit’s 2000 decision in Freedom from Religion Foundation, Inc. v. City of Marshfield.
Yet Buono and the ACLU were not appeased. It turned out that they didn’t just want the cross off government land. They wanted it gone altogether. They went back to the district court and asked that an injunction be issued barring the land swap. The court obliged, and the federal government again appealed to the Ninth Circuit, which, having already upheld the district court once, did so again. In striking fashion, the Ninth Circuit declared the land transfer unconstitutional because (1) the Court just knew that Congress wanted the VFW to keep the cross in place, even if the legislation said the opposite; (2) the Park Service would somehow be providing “upkeep” for the memorial once it was on private land (even though they had never provided upkeep for it in the past); and (3) the government had not conducted an open bidding process for the property.
The most dizzying conclusion from the Ninth Circuit was that even if the cross sat on private land, “a reasonable observer . . . would believe–or at least suspect–that the cross rests on public land because of the vast size of the preserve, more than 90 percent of which is federally owned” [emphases in the original]. Thus, the Ninth Circuit would have the courts prohibiting even private parties from displaying religious symbols in circumstances where an observer might not understand who owns what.
Buono–the case, not the man–finally made its way to the Supreme Court this month, where it is being considered on narrow grounds. The government did not defend itself from the charge that the memorial is a violation of the Establishment Clause. Instead, it argued that the district court erred in blocking the land transfer. In oral arguments, Solicitor General Elena Kagan seemed eager to wash her hands of the affair.
Frank Buono remains as aggrieved as ever. He claims to be a Roman Catholic and still insists that his gripe is not with the cross itself. Buono told the district court he still visits the preserve a few times a year, but that so long as the cross remains standing, he will avoid Sunrise Rock, even though it means taking the long way around.
As for the ACLU, they’re being compensated for their actions on Buono’s behalf. The Civil Rights Attorney’s Fees Award Act of 1976 stipulates that even in partially successful civil-rights suits, the defendant pays for attorney fees. So in 2004, the United States of America paid the ACLU $62,793.69 for their efforts to dismantle the memorial at Sunrise Rock. Once the Supreme Court hands down its verdict, there should be more money in the offing for the ACLU lawyers. From time to time, Congress has tried to amend this act so as to exempt Establishment Clause suits–after all, defendants suffer no damages in such cases–but such attempts have never become law.
And depending on how the Supreme Court decides Buono, there could be lots more work for the ACLU. After all, what would stop an aggrieved party from suing Arlington National Cemetery? (In an effort to hedge against Establishment Clause fights, the government makes available 39 different “faith markers” for the graves at Arlington, including special tombstones for atheists and Wiccans.) Then there is the national memorial in Michigan to Father Marquette, owned and operated by both the state and the National Park Service. The memorial depicts the missionary priest carrying a cross.
Nor are these just flights of fancy. The ACLU is already hoping that the Buono decision will help it with its case against the Mt. Soledad Memorial in La Jolla, California. A large cross that has served as part of a war memorial since 1913 has been the target of litigation for 20 years. In 2007, the ACLU filed Jewish War Veterans of the United States of America, Inc. et al. v. Robert F. Gates. They lost that case, but during the appeal process pointed to Buono as the future controlling precedent. If the ACLU wins Buono, they’ll be back for another try at Mt. Soledad, and the cash register will keep ringing.
Jonathan V. Last is a staff writer at THE WEEKLY STANDARD.
