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The Mojave Cross: Supreme Court dances around church-state issues, Scalia gets snippy
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(AP Photo/Liberty Legal Institute, Henry and Wanda Sandoz)
In the 1930s, a cross went up in the Mojave National Preserve to honor war dead. About 10 years ago, a guy named Frank Buono thought it was a bad thing for there to be an implicit endorsement of a religion on government land, and got the ACLU to help him do something about it. [Update 10/9/09: Bill Lewis reminds me that it's probably wise to explain that while the cross itself was erected in 1934, the land did not become public land until 1994, so the initial placement of the cross was not the problem, it was the fact that it remained there after the land became a public preserve.] Today, the Supreme Court finally argued over it. From the New York Times:
In the intervening decade, Congress and the courts have engaged in a legal tug of war. Congress passed measures forbidding removal of the cross, designating it as a national memorial and, finally, ordering the land under the cross to be transferred to private hands. Federal courts in California have insisted that the cross may not be displayed.
And in a way that only our own SCOTUS can, they seemed to avoid the hot-button church-state issue, and muddled around concerns of standing and the propriety of a land transfer. Of course, there's no way to know that this quasi-privately-owned land in the middle of a vast government preserve is not public land. Thus (at least partly thus) the muddling. The American Humanist Association put out an e-mail today explaining the stakes:
The case is important because it's the first major opportunity for the Roberts court to interpret the meaning of the Establishment Clause. "A ruling either way is likely to have profound implications," said Ritter. "A ruling in Buono's favor will likely lead to the removal of some religious symbols on public property throughout America, while a ruling against Buono may close the court house doors to others who seek to challenge Establishment Clause violations."
Americans United's Rob Boston was at the hearing, and provided some excellent on-the-ground recountings. He complained:
It seems to me that Congress was clearly trying to find a way to keep this cross on federal land. Its motivation was purely religious, and that alone should be enough to declare the act a violation of church-state separation.
The avoidance of the central issue has been frustrating to those on the secular side of the argument, but Boston saw some cracks:
Some justices did ask on-point questions about separation of church and state. Justice John Paul Stevens wanted to know if there is any other national memorial that consists solely of a religious symbol. (There is not.)
As you can seem, the church-state question was not wholly ignored, and even provided for some sparks.The NYT again:
The question of the meaning of a cross in the context of a war memorial did give rise to one heated exchange, between Justice Scalia and Peter J. Eliasberg, a lawyer for Mr. Buono with the American Civil Liberties Union Foundation of Southern California.
Mr. Eliasberg said many Jewish war veterans would not wish to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”
Justice Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.”
“What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”
Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom.
Justice Scalia grew visibly angry. “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,” he said. “I think that’s an outrageous conclusion.”
The reports don't go on to tell us why Justice Scalia thought this most obvious conclusion was an outrageous one. If you will allow me to opine (and I don't see why you wouldn't), the fact that it has become so widely accepted that a cross is not necessarily a Christianity-endorsing symbol is itself evidence that the endorsement of Christianity has so ensconced itself into our politics and culture--one particular faith gets the unique status of being so dominant that some of our highest officials simply take it as a universal symbol. It is not.
The cross is a Christian symbol, and its proud display is an act of the endorsement of Christianity. Just because most people in the U.S. happen to be Christian, and we've all been forced to 'get used to it,' that in no way endows it with Establishment Clause immunity. At least, not in a logic-based reality.
And of course, as Scalia argues for the cross's universality, he has also made no secret that he thinks Christianity (or at least Abrahamic theism) ought to be at the center of official government invocation in an explicitly theistic way, and should formally recognize the 'real' power behind a democratic republic. From a speech in 2002 [emphasis mine]:
The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law—even if it does not compel him to act unjustly—need not be obeyed. St. Paul would not agree. “Ye must needs be subject,” he said, “not only for wrath, but also for conscience sake.” For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that—in the words of a Supreme Court opinion from the 1940s—“we are a religious people, whose institutions presuppose a Supreme Being.” These reminders include: “In God we trust” on our coins, “one nation, under God” in our Pledge of Allegiance, the opening of sessions of our legislatures with a prayer, the opening of sessions of my Court with “God save the United States and this Honorable Court,” annual Thanksgiving proclamations issued by our President at the direction of Congress, and constant invocations of divine support in the speeches of our political leaders, which often conclude, “God bless America.” All this, as I say, is most un–European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as “the minister of God,” to “execute wrath” upon the evildoer.
It should be noted that this comes in the context of an address defending the death penalty: "I do not find the death penalty immoral," he concludes. So Scalia and all religionist excuse-makers can take a seat on this question. We all know that they don't really see a cross as a secular symbol, and if they do, it's because they're already so sure that their own religion is "assumed" as far as Americans are concerned.
As Mr. Boston recorded Americans United executive director Barry Lynn saying today:
The cross in Mojave Reserve has no historic significance, 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.
And let me add, for Justice Scalia's sake, nor should theistic invocations be on the money, in the Pledge, or in our oaths of office. The Founders, you'll recall, didn't see a need to put Yahweh into the Constitution at all. Put that in your strict constructionist pipe, etcetera.
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