On Monday, the government filed its merit brief with the Supreme Court in the matter of Salazar v. Buono, the Mojave Cross case. The Obama Justice Department is maintaining the same basic position in this dispuate as Bush's did: that Congress was within its rights to transfer land that held a memorial cross after the 9th Circuit ruled the religious symbol on government property violated the separation of church and state.
In its brief (pdf) , the government argues that Frank Buono does not have standing to bring this case, but also takes strong issue with the argument – affirmed in the appeals court – that the land transfer was an improper attempt to evade a court order, and that the effect of Congress' action was to leave in place the perception that the cross was government-sponsored speech.
[I]f the Establishment Clause permits the government to display a longstanding memorial with a predominantly secular message, (as in the Van Orden Ten Commandments case), a fortiori it permits the government to transfer such a memorial to a bona fide private recipient. Unlike in Van Orden, in the present case the government does not seek to communicate a message with some religious content. Rather, the government seeks to not communicate such a message—but without conveying any disrespect to the people for whom the symbol is significant or incurring the substantial social costs of appearing to do so. Certainly if the government itself may display some monuments that recognize our Nation’s religious heritage, then it may enable a private party to do so. The Establishment Clause does not demand destruction of a cross that has stood for 75 years as a memorial to those who have given their lives in defense of this Nation—and that will stand in the future on purely private ground.
You can read the entire brief here.
