LOS ANGELES - A federal district court ruled Friday that a proposed transfer of the federal land on which a Latin cross sits in the Mojave National Preserve to a private party is unconstitutional.
Judge Robert J. Timlin, who held in July 2002 that the cross situated on a prominent rock in the preserve violated the Establishment Clause of the First Amendment, ruled that an obscure section of the Department of Defense Appropriations Act of 2004 Act designed to facilitate the exchange of the land on which the cross sits to the Veterans of Foreign Wars "violates (the) court's judgment ordering a permanent injunction" to remove the cross.
"The judge's decision sends a clear message that the federal government should not endorse one religion over another," said Peter Eliasberg, managing attorney for the ACLU of Southern California. "The courts have consistently held that the cross in the Mojave National Preserve violates the First Amendment."
In his ruling, Judge Timlin wrote: "It is evident to the court that the government has engaged in herculean efforts to preserve the Latin cross on federal land and that the proposed transfer of the subject property can only be viewed as an attempt to keep the Latin cross atop Sunrise Rock without actually curing the continuing Establishment Clause violation by Defendants."
Eliasberg said the decision clears the way for removal of the cross.
The Mojave Desert cross sits on a federal land preserve in southeastern California between the cities of Barstow, Calif. and Las Vegas, Nevada. The preserve encompasses roughly 1.6 million acres of the Mojave Desert. The cross itself is located in a section of the preserve known as Sunrise Rock and has been covered by a plywood box since 2002.
Last summer the U.S. Court of Appeals for the Ninth Circuit affirmed a previous decision by Judge Timlin that the presence of a cross located on the federal Mojave Desert Preserve is a sectarian religious symbol and violates the Establishment Clause of the U.S. Constitution. The Ninth Circuit's opinion was written by Judge Alex Kozinski, a Reagan appointee. All three judges on the panel were appointed by Republican presidents.
The Ninth Circuit did not address whether Section 8121 of the Defense Appropriations Act of 2004 would allow the federal government to swap the land for other desert land or if the section "would pass constitutional muster."
The National Park Service (NPS), the agency that is charged with maintaining the cross, had been on notice about First Amendment violations since 1999 when the ACLU/SC sent a letter threatening legal action if the cross were not removed. In December of 2000, the U.S. House of Representatives added a rider to an appropriations bill that prevented the use of federal funds to remove the cross.