By Russell Shaw

Cross bolted to desert rock sparks church-state battle

U.S. Supreme Court hears arguments on whether 75-year-old war memorial violates First Amendment

The picture said it all. Appearing in media throughout the country, the image showed a bulky object encased in a plywood box standing atop a rocky outcropping. Hidden under the plywood, we were told, was a cross.

The cross — variously described in the media as 5 feet, 6 1/2 feet and 8 feet tall — stands in the Mojave National Preserve in San Bernardino County, Calif., overlooking the countryside from a local landmark called Sunrise Rock. It also stands at the heart of a church-state battle now nearing conclusion in the U.S. Supreme Court.

Pending the outcome of the case, Salazar v. Buono, the cross has been covered to keep it from offending anyone — except people who don’t like to see crosses meant for public viewing encased in boxes.

The American Civil Liberties Union and others protesting the cross want to do more than just cover it up, though — they aim to get rid of it entirely. Its presence, they contend, is government endorsement of religion contrary to the Constitution’s ban on a religious “establishment.”

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” reads the opening clause of the First Amendment.

The Supreme Court heard oral arguments in the dispute on Oct. 7, the third day of its 2009-10 term. A decision is expected in the next several months.

‘Unwelcome contact

The Mojave cross dates back to 1934, when the Veterans of Foreign Wars (VFW) placed it in its present location as a memorial honoring veterans of World War I. Other private groups and individuals have replaced the cross several times since then. The present cross was provided in 1998 by a local private citizen.

The trouble began in 1999 when the National Park Service, which oversees the preserve, refused to allow placement of a Buddhist memorial near the cross and, for good measure, said it intended to get rid of the cross as well. In response, Congress passed a law barring the park service from using public funds to do that.

In March 2001 a former assistant superintendent of the preserve named Frank Buono — a Catholic — started legal action to have the cross removed. Buono was miffed because only a Christian symbol had been allowed. But Congress in January 2002 designated the cross a national memorial.

Since then, a U.S. district court and the 9th Circuit U.S. Court of Appeals have both ruled twice against the park service and the U.S. Department of the Interior, of which the park service is part. Along with Buono, the name of the present Secretary of the Interior, Ken Salazar, adorns the case before the Supreme Court.

Congress in 2003 sought to deal with church-state objections by ordering the park service to transfer the land the cross stands on to the VFW, with the proviso that it be used only for the cross. The district court held this an illegal attempt to circumvent its earlier order that the cross be removed. The 9th Circuit appeals court agreed in 2007.

Government favoritism?

The Supreme Court said it would review that decision last February. Pending its decision, that’s where things stand now — the cross still standing atop Sunrise Rock, but hidden by plywood.

The constitutional argument against the cross made by Buono and his backers is relatively simple: allowing a Christian symbol on public property in the absence of other religious symbols violates the First Amendment’s establishment clause, because government thereby is favoring Christianity over other religions. Congress’ attempt to transfer the property to private ownership doesn’t do the trick, it’s said, because Congress didn’t repeal the cross’ designation as a national memorial.

The government makes essentially two arguments. The first is that Buono did not, and does not, have legal standing to bring the case because he hasn’t suffered any personal injury. Buono claims the injury of suffering “direct and unwelcome contact with a religious symbol on government land.”

The second argument is that display of the cross does not violate the establishment clause. If there ever was any impermissible government favoritism toward Christianity, it says, that ended in 2003 when Congress directed that Sunrise Rock be turned over to the VFW.

Speculation after the oral argument was that the outcome would focus on whether turning the land over to the veterans settled the dispute, rather than on larger constitutional questions.

The Supreme Court under Chief Justice John Roberts has been known for deciding cases on narrowly defined grounds rather than publish decisions that would have broad application across a broad range of cases.

Potential indicator

The court has wrestled fitfully with questions like those in the cross case since 1980, when it overturned a Kentucky law requiring display of the Ten Commandments in public-school classrooms.

Four years later, it allowed a Nativity scene on public lands in Pawtucket, R.I., because it was there along with secular symbols and simply took note of the holiday’s historical origins.

Since then, the Supreme Court and other federal courts have sometimes approved and sometimes disapproved religious displays without setting clear guidelines.
Salazar v. Buono is potentially an indicator of where the Supreme Court’s three newest members — Roberts and Justices Samuel Alito and Sonia Sotomayor — stand on church-state issues. Sotomayor joined the court last summer, replacing perhaps the court’s strongest advocate of strict church-state separation, David Souter.

Along with Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas, Roberts, Alito and Sotomayor bring the number of Catholics on the nine-member Supreme Court to an unprecedented high of six.

Transcript of Testy Exchange

U.S. Supreme Court Justice Antonin Scalia asked whether the cross was unconstitutional in the first place. He had a testy exchange with Peter J. Eliasberg, representing the American Civil Liberties Union, about whether the symbol — which the lawyer said “signifies that Jesus is the son of God and died to redeem mankind for our sins” — could also double as a secular marker for the war dead of all faiths.

Scalia said the cross was the “common symbol of the resting place of the dead,” and asked, “What would you have them erect ... some conglomerate of a cross, a Star of David, and you know, a Muslim half-moon and star?”

Eliasberg drew laughter from the crowded courtroom when he responded, “I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.”
Scalia did not laugh. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion,” he said.

Source: Washington Post

Russell Shaw is an OSV contributing editor.