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When Congress passed a law transferring the property around a war memorial cross in the Mojave National Preserve into private hands, did that resolve a court ruling that the cross violated church-state separation?

The U.S. Supreme Court grappled with that question Wednesday and related thorny issues, including how veterans should be memorialized and whether other cross-shaped war memorials are in danger of being taken down.

The case reached the nation's highest court eight years after a former assistant superintendent of the preserve sued because the National Park Service permitted the cross on its land but rejected a Buddhist shrine.

Solicitor General Elena Kagan argued that the transfer to the Veterans of Foreign Wars, arranged through a 2004 act of Congress, was a proper way to handle the complaint."The Establishment Clause does not prohibit the sensible action Congress took," she argued on behalf of the government.

She said a lower court left the government with two options when it determined the memorial was unconstitutional: either remove the cross, which had "acquired deep meaning for the veterans in the community," or find a way to dissociate the government from the 7-foot symbol.

Peter Eliasberg of the ACLU Foundation of Southern California argued that the congressional remedy amounted to preferential treatment since it was transferred to the very group that first erected the cross in 1934.

"The government is taking affirmative steps to permit, through this transfer statute, the display of the cross that they are enjoined from doing," said Eliasberg, who represented Frank Buono, the former preserve employee.

The justices delved into questions about how many national memorials exist with religious symbols and whether such ...

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October 2009

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