In 1934, members of the Veterans of Foreign Wars put a Latin cross atop a roadside rocky outcropping on federal land in the Mojave National Preserve. That cross and several replacements were destroyed; each time, a private party replaced it. In 1999, the National Park Service refused a request to place a Buddhist stupa near the cross. After the ACLU threatened litigation and the Park Service decided to remove the cross, Congress prohibited use of federal funds to remove the cross.
In March 2001, Frank Buono, a retired Park Service employee, filed a lawsuit challenging the continued presence of the cross on government land. Less than a year later, Congress designated the cross as a national memorial for World War I veterans. Nevertheless, the trial court prohibited the continued display of the cross on federal land.
In 2003, Congress acted again. This time, it transferred the land underneath the cross to Veterans of Foreign Wars, in exchange for other property. Congress also provided that if VFW ever stopped using the land as a war memorial, the land would revert to the government. The trial court concluded that the planned land exchange violated its injunction and prohibited the transfer, and the Ninth Circuit agreed.
The U.S. Supreme Court then agreed to review the case. In August 2009, Americans United filed an amicus brief in support of the plaintiff. We argued that government display of religious symbols can injure an observer such as the plaintiff, and that the trial court acted within its discretion in concluding that the land exchange did not cure the government endorsement of religion caused by the cross display.
In April 2012, the Supreme Court issued a decision sending the case back to the trial court for further consideration. A plurality of the Court concluded that the trial court failed to consider changed circumstances, and suggested that the land exchange was permissible.
The parties ultimately reached a settlement in which the Park Service would (1) give VFW the acre of land housing the cross, and (2) install a fence around the land, along with signs alerting visitors that the land was private property. The Park Service may still list the memorial on brochures, maps, and road signs, and Park Service employees may answer visitors’ questions about the memorial.
In April 2012, the trial court approved the settlement and dismissed the case.