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Published: Monday, 10/12/2009

At cross purposes

WHEN Congress decided to do an end run around the Constitution a few years ago, it exacerbated what was a straightforward case of separation between church and state. The case, involving a cross erected by a veterans' group 75 years ago deep in the Mojave National Preserve, was settled repeatedly in federal court - until Congress intervened.

Now the Supreme Court will take up the fight and decide whether to reaffirm the First Amendment or weaken it. For decades, the Mojave cross stood on public land without protest but in the late 1990s, a request to erect a Buddhist shrine nearby changed everything.

When the National Park Service denied that request, it prompted a former deputy superintendent of the preserve, Frank Buono, to argue that federal officials were acting unfairly. He objected to the government showing favoritism toward one religious symbol over another in violation of the establishment clause of the Constitution.

Mr. Buono took his case to court and won. That's when Congress, with a wink and a nod, stepped in, prohibiting the park service from using federal dollars to remove the display, designating it a national memorial, and ultimately transferring the land it sat on to private ownership.

The Justice Department says that last maneuver removes any constitutional problem with the cross.

Wrong. The proposed transfer, as Mr. Buono's attorneys rightly maintain, is merely a sham and an ineffective way to get around the constitutional violation.

The government's continued close relationship with the Christian cross - it would still be designated a national memorial and the federal officials would retain oversight of the property - only heightens constitutional concerns. Hopefully, the high court will see through the political pretense and reinforce the wall separating church and state.

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