Split court hears Mojave cross case

WASHINGTON, Oct. 7 (UPI) -- The U.S. Supreme Court heard argument Wednesday on the constitutionality of a cross erected without permission on public land in the Mojave Desert 75 years ago.

Lower courts have said the monument is unconstitutional and must be removed, and the cross is now temporarily covered by a plywood box, but the high court appeared divided on the issue Wednesday, The Washington Post reported.

The Supreme Court has been all over the map on similar cases in the past -- the one constant seems to be whether a religious symbol has been on public land so long it has become historical, and whether other symbols could also be displayed. The high court ruled in 1980 that a Kentucky law mandating the display of the Ten Commandments in public schools violated the First Amendment's separation of church and state. However, the justices ruled in 2005 that a Ten Commandments monument on the Texas Capitol grounds for decades could remain.

The cross (and its replacements) in the Mojave was erected by the Veterans of Foreign Wars. In the 1990s, the U.S. Park Service refused to let Buddhists erect a shrine nearby, and said the cross would have to go as well. But Congress stepped in, ordering the service to let the cross stay, and the agency was forced to transfer the immediate property to the VFW.

That didn't satisfy the lower courts, which said the transfer was a transparent attempt to slide around court rulings.

Wednesday, Justice Antonin Scalia was the most vehement defender of the constitutionality of the cross, the Post said. When Scalia said the cross was the "most common symbol of the resting place of the dead," American Civil Liberties Union attorney Peter Eliasberg responded that would not be true in a Jewish cemetery. Scalia called that an "outrageous conclusion," the newspaper said.

The Supreme Court may rule in the case this term.