WASHINGTON — In a case that could reshape the doctrine of separation of church and state, the Supreme Court agreed Monday to decide whether a cross to honor fallen soldiers can stand in a national preserve in California.
The case will give the Roberts court its first chance to rule directly on the 1st Amendment's ban on "an establishment of religion."
In the last two decades, the justices have been closely divided on whether religious symbols, such as the Ten Commandments or a depiction of Christ's birth, can be displayed on public property.
Four years ago, then-Justice Sandra Day O'Connor cast a fifth and deciding vote against the display of the Ten Commandments in a Kentucky courthouse. She said such a public display of a religious message violated the 1st Amendment because it amounted to a government endorsement of religion.
In dissent, the court's conservatives said religious displays on public land generally do not violate the 1st Amendment, since no one is forced to listen to a religious message or participate in a religious event.
A year later, O'Connor retired and was replaced by Justice Samuel A. Alito Jr., President Bush's second appointee, who could form a new majority on religion.
At issue is an eight-foot-tall cross in the Mojave National Preserve in San Bernardino County. A smaller wooden cross was first erected by the Veterans of Foreign Wars in 1934 and was originally maintained as a war memorial by the National Park Service.
The American Civil Liberties Union objected to the cross and filed a suit on behalf of Frank Buono, a Catholic and former Park Service employee. The suit noted that the government had denied a request to have a Buddhist shrine erected near the cross.
Two years ago, the U.S. 9th Circuit Court of Appeals ruled for the ACLU and declared the cross an "impermissible governmental endorsement of religion."
Congress had intervened to save the cross. It ordered the Interior Department to transfer to the VFW one acre of land where the cross stood. The 9th Circuit judges were unswayed, however.
Bush administration lawyers appealed to the Supreme Court last fall and said the "seriously misguided decision" would require the government "to tear down a cross that has stood without incident for 70 years as a memorial to fallen service members."
The government also questioned Buono's standing to challenge the cross, since he lives in Oregon and suffers no obvious harm because of the Mojave cross.
In a friend-of-the-court brief, the VFW, American Legion and other veterans groups said the 9th Circuit's ruling, if allowed to stand, could trigger legal challenges to the display of crosses at Arlington National Cemetery and elsewhere.
The court said it had voted to hear the case, now relabeled Salazar vs. Buono. Arguments will be heard in October, and Obama administration lawyers will be in charge of defending the presence of the cross.
Monday saw the return of Justice Ruth Bader Ginsburg. She had surgery for pancreatic cancer on Feb. 5, but as promised, she was back on the bench when the court resumed hearing oral arguments. Lab tests said her cancer was in a very early stage and had not spread.
Also Monday, the court refused to hear a challenge to the law against honest services fraud, despite a strong dissent by Justice Antonin Scalia.
Three former aides to Chicago Mayor Richard M. Daley had appealed their convictions for conspiring to steer city jobs to campaign workers. They questioned whether this was a federal crime. They were not accused of taking bribes or kickbacks, but were found guilty of depriving the city's taxpayers of honest services.
Scalia said this expansive phrase invites abuse by headline-grabbing prosecutors. Carried to its logical conclusion, he said, it would seemingly cover a salaried employee's phoning in sick to go to a ballgame.
Normally, fraud involves a scheme to cheat someone of money or property. Twenty years ago, Congress expanded the anti-fraud law to include schemes involving the intangible right of honest services. Since then, the law has been used against public officials, corporate executives and union leaders who violate a duty of trust.
Federal prosecutors have considered charging Cardinal Roger Mahony with honest services fraud because of the scandal involving priests who abused minors, The Times has reported. Legal experts have said that would be an unorthodox use of the law. The archdiocese said its attorneys have been told that Mahony is not the target of a federal probe.
Meanwhile, the court also agreed to hear the case of a Vietnam veteran who faces deportation because of bad advice from his lawyer. Jose Padilla, a legal permanent resident but not a U.S. citizen, was told he could plead guilty to marijuana trafficking without an effect on his immigration status. In fact, the law now requires deportation for non-citizens who are guilty of an aggravated felony, including drug trafficking.
Padilla tried to revoke his plea when he learned of the mistake, but the Kentucky courts said nothing could be done. The Supreme Court said it would hear his appeal and decide whether a lawyer's mistake calls for setting aside a guilty plea. The case is Padilla vs. Kentucky.