Another cross case.

Byline: The Register-Guard

Some of the parallels between the Mojave and Eugene cross cases are uncanny.

But let's back up. Thousands of people living here now probably don't know that for nearly 33 years Eugene fought over a 51-foot prestressed concrete cross on the southern brow of Skinner Butte.

Many (including ourselves) considered the existence of a huge cross in a public park a violation of the constitutional separation of church and state. A majority felt the critics were silly at best and un-American at worst. And so, the question went to court. Over time there were three decisions by the Oregon Supreme Court, one against and two in favor of the cross. Supporters won temporarily with a clever tactic, proposing a city charter amendment declaring the cross a war memorial. City voters approved the amendment.

While that subterfuge was rejected by a circuit court and the Oregon Court of Appeals, the state Supreme Court bought it, ruling in 1977 that the officially nonreligious war memorial designation kept the cross from violating the Constitution.

There things lay until 1991 when Eugene lawyer and former Congressman Charlie Porter and a small group of sympathizers filed a new suit, this time in federal court. They won, all the way through the Ninth U.S. Circuit Court of Appeals, which ordered the cross to come down. On June 12, 1997, it was trucked to the 40-acre campus of Eugene Bible College on Bailey Hill Road, where it stands today in social and judicial peace.

But back to the parallels. The U.S. Supreme Court heard arguments earlier this month in a case involving a cross on top of Sunrise Rock in a remote part of the Mojave National Preserve in California, not far from the Nevada border.

Court documents describe the cross as between five feet and eight feet tall, much shorter than Eugene's. It was first erected in 1934 by the Veterans of Foreign Wars to honor those killed in war. (The local VFW was the strongest defender of Eugene's cross, sponsoring the charter amendment that declared it a war memorial.)

There were suggestions that the land surrounding the Eugene cross should just be turned over to the VFW. That idea never flew. But Congress liked the same idea as a means of defending the Mojave cross. So when a federal district court ruled that the cross violated the First Amendment's establishment clause, Congress transferred the land to the VFW in exchange for other property.

The Obama administration is defending the cross, arguing that the transfer to private ownership relieves it of any impermissible religious onus. But The New York Times rightly concludes, "The land transfer was mere window-dressing. Bypassing normal procedures for disposing of government land, Congress gave the land to an entity it understood would keep up the cross, and it provided that the land would be returned if it was not used as a memorial."

One of the cross critics' strongest arguments is that displaying a pre-eminently Christian symbol in a federal land preserve indicates government favoritism toward one religion over others. There is tangible evidence of that. In 1999, the National Park Service turned down a request to place a Buddhist memorial in the area. The cross has been the site of Easter sunrise services for more than 70 years.

Oral arguments indicated that the court is most concerned about whether the land transfer is legitimate and thus makes the main case moot. If they say "Yes," they will open the way to untold mischief involving parks and other public property.

If the justices can get past that diversion, they should stick with the Ninth Circuit conclusion that the cross must be moved. That's the same court that made the final ruling in the Eugene cross case. Its decision never went to the Supreme Court because the appellants were late with their legal filings. But that's another story.

If today's justices want some helpful text for the Mojave case, they could do worse than borrow from then-Oregon Supreme Court Justice Ted Goodwin, who wrote the opinion the one time the Oregon court went the right way on the Eugene cross. This was before Goodwin himself was appointed to the Ninth Circuit bench. Here is an excerpt:

"While government can foster education in the history and cultural contributions of religions generally, and can act to protect the individual's right to his own personal expressions of religious opinion, the government has no business placing its power, prestige, or property at the disposal of private persons or groups either to aid or oppose any religion."