The Court's Cross to Bear

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.

 

 

Comments

[OldHenry]

A couple of thoughts.

The government did not erect that cross, as your essay implied. The VFW did.

The government did not give the land to the VFW. The VFW traded 5 acres of land for that one acre.

[Hannah Tahoma]

The establishment clause is definitely one of great importance and I would not want anything to damage the religious freedom we have in America. And this includes protecting the religious rights of others who do not share my religious beliefs because of this freedom. However, the fact is, that the cross found in this national state park was erected seventy-five years ago. I don’t understand why this is just now becoming an issue. It was built as a memorial to World War I veterans, and should be kept for this sake. It obviously holds some sentimental value and regardless of whether or not it is a specific religious symbol, it should be kept to remember the veterans who fought for our country. If it has been there for seventy-five years and hasn’t become a problem in the past, then it should stay. The government is not trying to establish a religion by this monument. It should just be regarded as a salute to those who fought for our freedoms including our freedom of worship.

[momintum]

World populace has been subjected to religious superstition in various forms for centuries. In many cases this theocratic mumbo-jumbo has been force fed with horrifying consequences for anyone who might dare to even question the authenticity of whatever dogma the "at the time power" wielded. Logic and reason have been put on a back burner to favor emotional hype controlled, emphasized, and promoted by those who seek to manipulate humanity along whatever channels lead to their agendas. Education itself has been both hindered and contaminated by the imagined deities of madmen and charismatic charlatans. Science and medicine have been snubbed, inhibited, and even persecuted by the not only ignorant but deliberate fallacies masterminded by the agents of chaos and deceit. As the world steps from under this black umbrella let's not regress or digress from positive progressive thought and actions into that dismal abyss of Dark Age mentality but strive to attain the fullest potential of our specie.

[rf dude]

James Jones nailed it in the dedication for his novel " The Thin Red Line":

" This book is cheerfully dedicated to those greatest and most heroic of all human endeavors, WAR and WARFARE; may they never cease to give us the pleasure, excitement and adrenal stimulation that we need, or provide us with the heroes, the presidents and the leaders, the monuments and museums which we erect to them in the name of PEACE. "...
--

[AllYourReligionRSilly2us]

Turn the cross upside-down, and put a point on it. It will look like a sword. Appropriate.

[SewaneeLeftist]

Nice article that clearly states the risks if the separation of church and state is undermined.

[Soulmentor]

Quite aside from all the official "church/state? constitutional controversy, there is another very substantial reason to remove a predominant Christian symbol from a government/military cemetery. Namely that, very likely, not all those buried there are Christians and their beliefs, whatever they may have been, deserve equal respect.
Christians need to get over the reality that they do NOT live in a "Christian nation". Sorry if that costs them their previous power and social influence, but tsk tsk. Umm...hmmm­. No! I'm not!!!

[SewaneeLeftist]

Quite right, Soulmentor.

[been2there]

Can we, the people, get several other religious symbols put up to improve this? Surely all religions, and for this discussion atheism will be considered a religious persuasion, can agree to symbols to honor our fallen heros.

[Eric Mann]

John-I agree! Take the refrences to God off of our money! The reference to God in the Pledge of Allegience was added to differentiate the "God fearing US" from the "Godless USSR"-and frankly should be removed, it should have never been there in the first place.
However, this should be taken care of first. Not only does it publicly display governmental support of religion, but even goes as far as which religion. I, as a Jew and a Humanist, see crosses on public property (or property that is percieved by people as public even though it technically may not be) as more henious than the words "In God We Trust" on our money because it singles out Christianity as the official state religion, whereas those words may be seen by us atheist types as simply a statement that most people in this country believe in God.

[ReesieKitty]

I agree- it does not HURT anyone's religion to 'add' to the monument with a fitting statue or display for other religions.

[daffey]

I can see where the injury argument used would be problematic for free speech. But we are in a tangle. Since the SC interpreted the 1st as a barrier between faith and politics and government property, it has led to no end of contradictions, problems, and quite frankly, inconsistent applications of the various decisions and conclusions. For some, particularly radically secular, it is a basis for an increasingly secular country - not secular in the sense envisioned by the Founders, but secular in the sense of increasing censorship of free religious speech (the only topic of speech spelled out in the Bill or Rights). Even the SC has struggled when it seems as if a decision has to choose between the two children (establishment clause, free expression clause). Judging a tree by the fruit it bears, and having a hunch that the founders envisioned a country where religion was worn freely on one's shoulders in all arenas, I have a feeling that until we accept that maybe that infamous decision regarding SoCaS needs some rethinking, we are going to have everything from schools able to teach Islam and crosses endorsed by the government, to children being forbidden speaking openly of their faith or agenda driven groups using loopholes to advance nothing so much as outright censorship and oppression of religious expression. Just MHO.

[dadw5boys]

Is Islam the only otherr Religion you know of ?

There are at least 187 different religions in the world.

[Rrhain]

There have, indeed, been no end of contradictions, problems, and inconsistent applications. However, the problem is that the SCOTUS has refused to have the courage to follow through on the protections of the First Amendment. Instead, they kow-tow to the passions of those who believe...­partly because they are believers, themselves. Take a look at the Newdow case and the arguments made: That somehow the word "god" doesn't actually mean "god;" that when you say, "under god," that isn't actually an invoking of god.

While the idea that founders "envisioned a country where religion was worn freely on one's shoulders in all arenas" is laughably false, there is no threat to religion from strict enforcement of the First Amendment. If a person's faith is so fragile that it cannot be sustained without government invocation in all areas of life, then that person has problems that cannot be solved by government.

There is a difference between denial and silence. No child is ever forbidden speaking openly of his or her faith, despite what O'Reilly says. The teachers, however, aren't there to do it for them.

[MO-JM]

I think the key point here is that the monument was placed 75 years ago. There should be some kind of statute of limitations about challenging such things. There is a historical and cultural element in older displays - and I tend to advise that people take these things with a grain of salt.

Now -- new displays which apparently favor one particular religion, those I would question - but I would question them in advance of their placement. The much larger concern, of course, is actual government favoritism and advancement of a particular religion in public policy, as opposed to mere displays, etc. That's the thing to keep a close eye on, as I see it, and is by far the greater threat.

[Joan Jacobs]

My father was a 17 year old high school student on Dec. 7, 1941. The following day, after school & with his mother's permission my Dad went to the recruitment office and joined the Marine Corps. Although his father was Jewish, his mother was not and by Jewish law children take the religion of the mother. So, although under Jewish law he would not be considered a Jew, when he signed up he listed his religion as Jewish. While there were several reasons for this - one of the biggest was that he had always been told that Jews were 'chicken' and had decided that if he didn't make it through the war - there should be at least one Mogen David (Jewish star) among all the crosses in Arlington Cemetary.

Imagine if you will, all those children growing up within sight of the Mojave National Preserve. Many of them probably have never met any Jewish vets and based on the evidence of their own eyes there were no Jews fighting in WWI (which might just perpetuate the myth that all Jews are cowards). Maybe it would be better to find a way to honor all the brave men who fought in WWI that doesn't discriminate on the basis of religion. I think the lower court ruling should be upheld.

[myopinion2]

Thank you for sharing your Dad's story. Clearly he was both a proud Jew and a patriotic American.

[LeftRight]

Thank you for sharing your dad's story, it's very touching.

On the other hand, this is not harming anyone. If anything should be done other memorials should be added, but this has been there for THREE QUARTERS OF A CENTURY, and its purpose is not to encourage Christianity, but to honor the dead of World War I.

And before you ask, I'm a veteran myself, of the Global War On Terror, and an atheist.

[JohnFromCensornati]

I'm vigorously anti-religion, but these fights over monuments to dead people seem absurd to me. This just doesn't bother me. Take the references to gods off our money and out of our anthems and oaths. Then worry about things like this.

[MarkLine]

John, I recommend living some where else, please don't ruin this country for the 70% that identify themselves with some branch of Christiani­ty...Oh, Church and State is set to keep government out of church, not church out of government­...do a little research.

[LeftRight]

Actually, it's meant to do BOTH, keep government out of church, and church out of government. But you are BOTH right about one thing, this cross shouldn't come down.

[exxman]

That's a new one. In all my 60 years I've not heard anyone say that. Probably because it's patently not true. The sword of seperation of church and state cuts both ways. You need to be more discriminating in where you do your research.

[JohnFromCensornati]

It would be better if you knew what you were talking about before you posted.