Separation of church and state takes center stage at the Supreme Court on October 7. That's when the Justices will hear oral argument in Salazar v. Buono, a case that pits veterans groups and the Department of the Interior against the ACLU and a former employee of the National Park Service. The question is whether a human-sized cross that was erected on public land seventy-five years ago as a memorial to World War I veterans violates the Establishment Clause of the First Amendment. The case isn't an easy one, but ultimately, the Court should uphold the lower court decisions that found the cross unconstitutional.
The Obama administration advances two arguments for reversing the lower courts. First, it argues that because plaintiff Frank Buono -- the former Assistant Superintendent of the Mojave National Preserve where the cross sits -- objects not to the cross itself (he himself is Roman Catholic) but rather to the placement of the cross on public property unaccompanied by other religious symbols, he lacks the necessary injury to bring suit. The government suggests that Mr. Buono has suffered no harm to his spiritual beliefs but rather merely disagrees with the government's policy, an injury insufficient to give him so-called "standing" in federal court.
This argument, if accepted by the Justices, would do great damage to the First Amendment. It would make it nearly impossible for religious believers to challenge government support of their own religious beliefs. But, as James Madison and other drafters of the First Amendment realized, government support of religion is harmful not only to nonbelievers and the government, but also to religion itself. A visit to many of Europe's grand but empty churches, supported by government funds, lends contemporary support to this phenomenon that our constitution's framers understood so well.
Second, the government's lawyers argue that Congress remedied any constitutional problem when it authorized the Interior Secretary to transfer the one-acre of land on which the cross sits to the VFW, a private organization. The idea is that since the cross no longer would officially be located on public land, Buono can no longer claim that the government itself is endorsing religion in violation of the First Amendment.
Government entities transfer ownership of religious symbols to private groups to avoid Establishment Clause problems more often than you might think. These swaps can result in some really odd displays. For example, when I was doing a series of church/state road trips a couple of years ago for my recent book Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, I found myself in La Crosse, Wisconsin. A few years prior to my visit, the city had transferred a tiny parcel of land within a small urban park to the Fraternal Order of Eagles, which had years before donated a Ten Commandments monument to the park. As part of the transfer, the city fenced the area and posted a sign that read: "THIS PROPERTY IS NOT OWNED OR MAINTAINED BY THE CITY OF LA CROSSE, NOR DOES THE CITY ENDORSE THE RELIGIOUS EXPRESSIONS THEREON." Inelegant, perhaps, but it solved the constitutional problem.
No such fence or sign exists in the Salazar case, however. Any person who sees the massive cross--and it's easily seen from nearby Cima Road, which passes through the preserve only a hundred yards away--would reasonably assume that the cross belongs to the government and is maintained by the Park Service. And indeed, the observer would be at least partially right. The statute that authorizes transfer of the property to the VFW grants the government the right to access the land to install a memorial plaque as well as automatic re-ownership of the property if it determines that the area is no longer being used as a "war memorial." But even without these quirks, the government's proposed transfer does not alone (without prominent signs and a fence) solve the essential problem posed by the cross.
That problem, moreover, is a serious one. Though these religious display disputes are known to cause much snickering in certain circles, the Supreme Court has long understood the high stakes involved in these cases. When citizens perceive that the government is endorsing a particular religious belief, they feel -- as Justice Sandra Day O'Connor famously put it -- like "they are outsiders, not full members of the political community." The fact is that symbols matter. They matter sometimes more than almost anything. Why did Pittsburgh Steeler fans freak out when a Tennessee Titan player pretended to blow his nose in a terrible towel? Why do people become apoplectic when someone burns an American flag? Why do people like Buono risk derision, even violence, to challenge religious symbols on public property? On my road trip, I spoke with lawyers at the Freedom From Religion Foundation in Madison, Wisconsin, who told me that it is the cases involving religious symbols and displays -- not the ones involving government funding of religion or even religion and the public school curriculum -- that bring out real honest to goodness death threats. Death threats! The government should surely honor our fallen war heroes, but erecting a massive, stand-alone symbol of Christian faith is not the way to do it.
Jay Wexler is Professor of Law at Boston University. His book Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, was recently published by Beacon Press.