November 2009 Church & State | Featured

Justice Antonin Scalia has made it clear: the cross is not just a symbol of the Christian religion.

In fact, he said during oral arguments at the U.S. Supreme Court on Oct. 7 that to claim the cross is only a religious symbol is an “outrageous conclusion.”

“[The cross] is the most common symbol of the resting place of the dead,” he said, indicating that a veterans memorial consisting of a cross mounted on a 15-foot rock in the Mojave National Preserve in California honors all of America’s war dead.

“What would you have them erect?” Scalia asked. “A cross – some conglomerate of a cross, a star of David, and you know, a Muslim half moon [sic] and star?”

In response to Scalia’s remarks, American Civil Liberties Union attorney Peter Eliasberg quipped, “Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.”

The crowd in the Supreme Court’s ornate courtroom chuckled, but Scalia didn’t.

The justice’s statements make clear how he is likely to rule in Salazar v. Buono, the only church-state case before the U.S. Supreme Court this term. The Religious Right and its allies in Congress hope the high court will use this case, which revolves around a Latin cross on public land, to overturn decades of legal precedent upholding church-state separation – and perhaps whittle away at citizens’ right to bring such cases.

Americans United filed a friend-of-the-court brief urging the justices to uphold government neutrality and realize the dire constitutional ramifications if the court agrees with the Religious Right’s view. (See“A Cross, The Court and The Constitution,” Church & State, September 2009)

Over the years, Congress has taken extraordinary steps to keep the Mojave cross towering above the desert floor. Originally erected in 1934 by members of the Veterans of Foreign Wars (VFW), the symbol over the years has fallen into disrepair and been replaced by private individuals.

The Christian emblem stands alone because the National Park Service has failed to take action to remove it, despite turning down a request to erect a Buddhist stupa on land nearby.

When Congress got wind that an ACLU lawsuit challenging the constitutionality of the cross might be successful, it passed a law forbidding the use of federal funds to remove the cross. Federal funds were approved, however, to declare the cross a national memorial and install a plaque at the site.

But despite these political games, a federal district court and the 9th U.S. Circuit Court of Appeals ordered that the cross be removed, citing the constitutional separation of church and state.

In 2004, in a bid to sidestep the courts’ orders, Congress voted to transfer one acre of public land around the cross to the VFW. A district court and the 9th U.S. Circuit Court of Appeals said the land transfer was unconstitutional because it clearly violated the courts’ original injunction.

The government then appealed the case to the U.S. Supreme Court.

The high court’s decision will likely hinge on at least one of three issues: whether this cross violates church-state separation, whether the congressionally mandated land transfer is valid and whether the plaintiff in this case, Frank Buono, has “standing” (the right to sue).

Buono, a Roman Catholic, sued the government, not because he objected to crosses and other Christian symbols, but because he thought government favoritism toward one faith is wrong. His principled stand is laudable, but it has led opponents to charge that Buono isn’t “offended” and therefore shouldn’t have standing.

U.S. Solicitor General Elena Kagan, who argued the case on behalf of the government, told the high court that all these issues could be open for determination.

Except for Scalia, however, the other justices seemed more focused on technical issues surrounding the land transfer. This suggests the final decision may be very narrow and based mostly on procedural matters.

“The injunction says the government is enjoined from permitting the display of the Latin cross, period,” said Justice Steven Breyer. “Once this law takes effect and you follow it, you are violating that injunction. You don’t need nine proceedings to see that; you’re violating it.”

Justice Ruth Bader Ginsberg pointed out that under the land transfer statute, the VFW is required to keep the property as a memorial, meaning the government still has a stake in what happens on this land.

Justice Sonia Sotomayor, the new member of the bench, also seemed concerned with the government’s ongoing relationship with the religious symbol.

“Are all of the private owners on this preserve required to give the land back to the U.S. if they put it to some different use?” she asked the ACLU’s Eliasberg.

Since this is Sotomayor’s first church-state case, it is uncertain how she will rule. But many observers believe that the decision may easily come down to the usual four-four church-state split, with Justice Anthony Kennedy making the deciding vote. (He didn’t tip his hand at the oral argument.)

The court’s split during oral argument was reflected on the crowded portico of the Supreme Court. Veterans, students, pastors, tourists and even a woman dressed as Betsy Ross clutching a Bible to her chest came to voice their thoughts on how the justices should rule.

Also sounding off were civil liberties groups including Americans United, the ACLU and the Baptist Joint Committee who engaged in verbal battle with Religious Right leaders Kelly Shackelford of Liberty Legal Institute and Jay Sekulow of American Center for Law and Justice in front of the press.

AU Executive Director Barry W. Lynn told the media that Scalia is wrong about the Mojave cross.

“The cross in Mojave Reserve has no historic significance,” he said. “It has no secular significance. It is a powerful symbol of the dominant religion in this country and, as such, it has no business being in the Mojave Preserve.

“There is not one reasonable person,” Lynn continued, “who drives on those roads and sees this cross on one acre who doesn’t think that that acre is controlled – like the 1.6 million other acres – by the federal government for people of all faiths, no faith and people of all ideological persuasions.”

Shackelford disputed Lynn’s arguments.

“These memorials are being attacked across the country,” Shackelford said. “And really, our real goal for the veterans groups is to stop this disgraceful conduct of having more memorials that have been up for 75 years coming under attack because of political correctness or whatever mood of the day.

“This was not put up by the government,” he continued, “it was put up by veterans. This is the symbol they chose.”

Shackelford’s argument fails to consider that the cross cannot serve as an appropriate memorial for 29 percent of service members currently in the U.S. military who do not affiliate with Christianity (according to the Department of Defense).

That’s why veterans groups are split on the issue, with minorities filing friend-of-the-court briefs asking for the cross memorial to come down and the VFW and the American Legion taking the other side. The Jewish War Veterans of the United States, American Muslim Armed Forces and Veterans Affairs Council, the Muslim American Veterans Association and the Military Association of Atheists and Freethinkers all say the Christian symbol does not properly honor non-Christian service personnel who die serving their country.

Simmering in the background of this case is the disappointment felt by many civil liberties activists with the Obama administration. While the solicitor general’s office is generally required to defend congressional statutes, lawyers there were not required to bring up standing and undercut church-state precedent, especially under an increasingly right-leaning court led by Chief Justice John Roberts.

“I recognize that the Obama administration had little choice but to defend the statute that sold the land,” said AU Legal Director Ayesha N. Khan, “but we were disappointed that they took the unnecessary step of arguing that the plaintiff lacked standing to bring the lawsuit in the first place. You would think that government officials would want a court to let them know whether the cross, and the congressional statute that sold the public land, are unconstitutional.”

Despite the Religious Right’s attempt to paint the Buono lawsuit as an attack on veterans, some commentators have seen the bigger picture.

In an Oct. 6 editorial, The New York Times said, “Religious symbolism of this kind on government land is, by its very nature, exclusionary. Allowing only a cross to stand over the memorial sends a message to Jews, Muslims, Buddhists and others that their sacrifices, and their family members’ sacrifices, are not appreciated or mourned.

“It also sends a message that state and church are intertwined,” the newspaper continued. “A single cross does not, by itself, mean America has an established religion, but if the Supreme Court stops caring that the government is promoting a particular religion, we will be down the path toward having one.”

The Los Angeles Times echoed that sentiment.

“It would offend the 1st Amendment if the court endorses this discriminatory display in a public space,” the newspaper asserted. “Even worse would be a broad decision opening the way for other such displays.

Noting that Sandra Day O’Connor’s replacement Samuel Alito is less supportive of the church-state wall, the Times editorial concluded, “If Breyer and Justice Anthony M. Kennedy – a swing vote in religion cases – don’t stand up for the 1st Amendment, this case could blow a gaping hole in that wall.”

Advocates of church-state separation will be watching closely to see if the church-state wall survives this latest challenge intact. A decision is expected sometime before the Supreme Court adjourns for the summer next June.