The federal judge was not persuaded. The judge ruled that Congress was merely attempting to evade the court’s earlier order that the cross be removed. The court then issued a permanent injunction blocking the government from implementing the congressionally authorized land swap.
It is that injunction that the high court reversed on Wednesday.
“The district court did not engage in the appropriate inquiry,” Justice Anthony Kennedy wrote in a plurality decision.
“By dismissing Congress’s motives as illicit, the district court took insufficient account of the context in which the [land swap] statute was enacted and the reasons for its passage,” Kennedy wrote.
“Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World War I,” he said. “Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message.”
Justice John Paul Stevens disagreed.
“In my view the district court was right to enforce its prior judgment by enjoining Congress’s proposed remedy – a remedy that was engineered to leave the cross intact and that did not alter its basic [religious] meaning,” he wrote in a dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Stevens said most judges would find it a clear establishment clause violation if Congress directed that a solitary Latin cross be erected on the National Mall in Washington as a World War I memorial. He said the transfer of land in the Mojave Desert perpetuated rather than cured the government’s endorsement of a religious message.