U.S. Supreme Court Rules in 'Cross Case'. Cross Still Stands, but on Shaky Ground

We should rejoice that the little white Cross still stands to honor the war dead in the desert. However, the confused state of Establishment Clause Jurisprudence in the United States still remains. Many reports indicate this opinion was a victory for those who take an approach of accommodating religion. I wish that really were the case. However, the opinion does not support the claim. The hostility toward religious expression in the United States continues to grow.

P>WASHINGTON, D.C. (Catholic Online) - On Wednesday October 7, 2009 the United States Supreme Court heard oral arguments in Salazar v. Buono. The name of the case was derived from the original plaintiff in the lower court, Frank Buono, and the then Secretary of the Interior, Ken L. Salazar.  The ACLU Foundation represented Frank Buono. He filed suit to have the Cross removed, assisted by the ACLU. Somehow he was found to have "standing", the ability to actually bring the case when a Federal Court Judge held that the cross constituted an unwelcome religious display. The case began its decade long journey through the US Court system in 2001.

The question presented was whether a small, nondescript, white wooden cross, a memorial to war dead in the middle of a desert, violated the so called "Lemon Test". The test sets forth three considerations which Courts are supposed to use in cases where it is claimed that the Establishment clause of the First Amendment to the US Constitution has been violated. The test was invented by Chief Justice Warren Burger's in a case styled Lemon v. Kurtzman (1971).  The Court is supposed to ask the following; Is there a "secular purpose" for the religious display, does the "primary effect" advance a religion and does it foster an "excessive entanglement" with religion.

Well, according to a lower Court Judge, the "primary effect" of the little white cross in the desert, erected to honor the War dead, was to advance a particular religion, Christianity, and thus it violated the Establishment Clause.  Does anyone really believe that this was the kind of approach the American founders wanted taken to religious symbols? The little white cross stood in the Mojave National Preserve in California while this matter wound its way through the Courts. However, it was covered over with plywood. That was ordered by the Court to prevent any further such "injuries" like what was claimed by Frank Buono.

The Government (The Interior Department) took the matter to the Ninth Circuit Court of Appeals. However, Congress intervened in 2004, trying to bring the matter to a close. They ordered the Interior Dept to transfer the land upon which the small cross was erected to the VFW in exchange for a parcel which was privately owned. The legislation called for it to continue as a War memorial. If it was used for any other purpose, ownership would revert back to the federal Government.

However, the case was still not over. The original complainant, through the ACLU, then asked the District Court to rule that the transfer to private property was invalid because it was an evasive maneuver! The Court did just that. It held that the transfer was an effort to evade its ruling. So, the Government went back to Court. The Ninth Circuit would not hear the matter again. So the Interior Department asked the Supreme Court to review the case. It was finally heard on Wednesday, October 7, 2009.

The US Government (Interior Department) raised two issues: "standing" (whether Buono had an actual injury and should have been able to bring the original case) and whether the Congressional transfer was "an eminently sensible and constitutionally permissible way of resolving any Establishment Clause problem."  Frank Buono, through the ACLU lawyers, countered that he had standing because he "had direct and unwelcome contact with the cross in the Preserve and will incur burdens to avoid exposure to it in the future." He further argued that the transfer was invalid and did not cure the alleged establishment clause violation. My, how hostile this land of religious freedom has become to religious expression.

All who are concerned about the growing hostility toward religious speech and expression in the United States have been watching this case with great interest. I maintain that the very fact that the case made it all the way to the US Supreme Court shows the blatant hostility toward religious expression in our Nation. In 1992 following the incomprehensible opinion in Lee v Weisman, while serving as the Executive Director of the American Center for Law and Justice, a public interest law firm, I wrote a law review article entitled "In the Wake of Weisman: The Lemon Test is Still a lemon but the Psycho-coercion Test is more bitter Still".

In that article, after tracing the history of the interpretation of the Establishment clause of the First Amendment to the US Constitution, and the developments of the last few decades, I predicted the insanity that would follow from the efforts of the Supreme Court to apply this so called "Lemon Rule" and it's ever expanding "interpretations". The Establishment Clause is best understood as an "anti-establishment" clause. It was intended to prohibit the "establishment" of one particular religion in the sense of a Federal or State sponsored Church which mandated adherence from unwilling citizens. The American founders fled coercive approaches to religion. Yet, they were not anti-religious and they were not against religious symbols or expression. Our history is filled with them. Or, more accurately, it once was.

Well, the case has now taken a new turn. On Wednesday, April 28, 2010 the US Supreme Court, in a 5-4 decision, issued its long awaited ruling. In practical effect, the World War I memorial in the Mojave Desert can stand. However that cross stands on very shaky legal ground.

Writing for the majority Justice Kennedy explained:  "Placement of the cross on federal land by private persons was not an attempt to set the state's imprimatur on a particular creed. Rather, the intent was simply to honor fallen soldiers. Moreover, the cross stood for nearly seven decades before the statute was enacted, by which time the cross and the cause it commemorated had become entwined in the public consciousness.The 2002 injunction thus presented the Government with a dilemma. It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those the cross was seen as honoring. Deeming neither alternative satisfactory, Congress enacted the land-transfer statute. The statute embodied a legislative judgment that this dispute is best resolved through a framework and policy of accommodation. The statute should not have been dismissed as an evasion, for it brought about a change of law and a congressional statement of policy applicable to the case."

In another place in the majority opinion Justice Kennedy wrote "Here one Latin cross in the desert evokes far more than religion. (It) evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten." His point was to argue that the Lemon Test had not been violated. There was a "secular" purpose. However, even though these sensible words are being quoted throughout reports on the opinion, in effect, the Supreme Court let the Cross Stand because the transfer to private property removed the Establishment Clause issue. So, in effect, the questions concerning the role of religious symbols on public land was not really addressed in this opinion.

Most of us remember the "crucifix controversy" in Italy last year. The European Court of Human Rights tried to require the removal of crucifixes in the classrooms of Italy's schools. The leaders of the Italian Government rightly fought the effort at religious cleansing. They argued that the cross was a religious symbol which was a part of the history of Europe and must be so honored. The leaders of the Catholic and Orthodox Churches spoke out strongly as well. The question which must be faced in the United States is whether symbols which reflect the Jewish and Christian heritage of the West have any place in our public life? Are they reflective of our history and heritage? We are talking about a small, nondescript, white, wooden cross to honor the dead, in the desert! And, someone literally made a "constitutional case" over it. 

We should rejoice that the little white Cross still stands to honor the war dead in the desert. However, the confused state of Establishment Clause Jurisprudence in the United States still remains. Many reports indicate this opinion was a victory for those who take an approach of accommodating religion. I wish that really were the case. However, the opinion does not support the claim. The hostility toward religious expression in the United States continues to grow.

Justice Kennedy wrote the majority opinion but was only joined in part by Justice Roberts. He noted "Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message," Justice Alito wrote his own opinion saying the case did not need to be sent back to the lower Court because the legal issue was no longer present. Justices Scalia and Thomas wrote another opinion saying that Frank Buono really never had any standing. Certainly, this was NOT a strong expression of accommodating religion.

Retiring Justice Stevens, who probably occupied his seat for the last time Wednesday after 62 years on the bench, wrote a strong dissent. He insisted that honoring the war dead did not justify a "continued endorsement of a starkly sectarian message." Justices Ginsburg and Sotomayor agreed with him and Justice Breyer wrote his own dissent arguing the case should have never made it to the Supreme Court.

So, that little white cross still stands in the Mojave Desert, but on very shaky ground.

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