Ruling 5-4 in Salazar v. Buono, the majority concluded that the Latin cross, a part of a war memorial, did not amount to an endorsement of religion by the federal government.
"Here one Latin cross in the desert evokes far more than religion," Justice Anthony Kennedy wrote. "It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."
As noted by the majority opinion, the cross was displayed in the preserve in 1934 atop Sunrise Rock "in a remote section of the Mojave Deseret." Private citizens have been largely responsible for maintaining the cross, Kennedy wrote.
Frank Buono, a retired Park Service employee, sued the government arguing that the presence of the Christian symbol on federal land violated the First Amendment. Federal courts ruled in Buono's favor. Congress then became involved, passing laws barring federal funds to be used to remove the cross, designating the cross a national war memorial and transferring interest in the land to the Veterans of Foreign Wars. A federal district court subsequently ruled that the Congress's actions were intended to keep the cross on Sunrise Rock, despite the federal court rulings.
Justice Kennedy wrote that Congress' motives in the matter were "illicit," and that the lower federal court "took insufficient account of the context" of the federal lawmakers' actions.
"Time," Kennedy continued, "also has played its role. The cross had stood on Sunrise Rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness. Members of the public gathered regularly at Sunrise Rock to pay their respects. Rather than let the cross deteriorate, community members repeatedly took it upon themselves to replace it. Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage."
In dissent, Justice John Paul Stevens wrote that the federal courts correctly found Congress' actions were intended to promote a religious symbol. Citing the federal appeals court ruling, Stevens wrote, "After the transfer, a well-informed observer would know that the cross was no longer on public land, but additionally be aware of the following: The cross was once on public land, the Government was enjoined from permitting its display, Congress transferred it to a specific purchaser in order to preserve its display in the same location, and the Government maintained a reversionary interest in the land. From this chain of events, in addition to the factors that remain the same after the transfer, he would perceive government endorsement of the cross."
Stevens' dissent was joined by Justices Ginsburg and Sotomayor. Justice Stephen Breyer filed a separate dissent.