(The following is from the ACLU newsletter dated 10-16-2009)

The Court and the Cross

Last week, the Supreme Court heard argument in Salazar v. Buono, an establishment clause challenge to the federal government’s display of a Latin cross in the Mojave National Preserve.

The Court’s questions focused largely on esoteric procedural doctrine, and while it’s always risky to predict the outcome of a case based on an oral argument, it seems unlikely the Court will rule on the broader constitutional issues in the case -- namely, whether the plaintiff, a devout Catholic and former National Park Service employee, had standing to challenge the display of the cross; and whether, before it tried to transfer the cross to a private party, the government violated the First Amendment by displaying the sectarian symbol on federal land.

While the Supreme Court ultimately may pass on the loftier constitutional questions in this case, Wednesday’s argument had some dramatic moments. In the most heated exchange of the morning, Justice Antonin Scalia peppered Peter Eliasberg, the ACLU attorney arguing for the plaintiff, with questions about the significance of the cross. Justice Scalia bristled at Eliasberg’s suggestion that a World War I memorial featuring only a Christian cross sends a message of exclusion and religious favoritism, asking, "The cross doesn’t honor non-Christians who fought in the war?" After Eliasberg responded that the cross "is the predominant symbol of Christianity," Justice Scalia pushed back, suggesting that there was no constitutional problem with the display because "the cross is the most common symbol of the resting place of the dead." Eliasberg resisted, explaining that "the cross is the most common symbol of the resting place of Christians." "I have been in Jewish cemeteries," continued Eliasberg, the son of a Jewish World War II Navy veteran. "There is never a cross on a tombstone of a Jew."

The notion that a war memorial featuring a stand-alone Latin cross serves to honor only Christian war dead -- a notion Justice Scalia called "outrageous" -- was echoed in a series of amicus briefs filed in the case by various veterans groups.

However the Buono case is resolved, it will be difficult, if not impossible, to convince many non-Christian veterans that an isolated, freestanding cross expressly recognizes their service to the country. And Congress’s designation of the Mojave cross as one of only 49 national memorials (and the only one commemorating World War I), joining such iconic symbols as the Washington Monument and Mount Rushmore, only compounds the problem. As one retired Army brigadier general recently put it, "The cross is unquestionably a sectarian religious symbol that, as a congressionally designated national memorial to veterans, would convey the message that the military values the sacrifices of Christian war dead over those of service members belonging to other faiths."

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Comment by Gaytor on October 17, 2009 at 2:45pm
FFRF Wins Ten Commandments Case

In February 2004, the Freedom From Religion Foundation won its challenge of a Ten Commandments monument in a public park in La Crosse, Wisconsin, and the city's convoluted attempt to sell a small bite of the park to the Fraternal Order of Eagles in order to maintain the monument in the same park. Federal Judge Barbara Crabb of the Western District of Wisconsin noted: "It borders on preposterous to argue that the government can avoid an establishment clause violation by 'dedicating' a religious object to a nonreligious group. Adopting such a view would permit municipalities to erect crosses and build churches on public property throughout the city so long as it could think of a new group to which it could dedicate each one." The city and the Fraternal Order of Eagles, represented by television evangelist Pat Robertson's legal group, have appealed the ruling to the 7th U.S. Circuit Court of Appeals. Link

This case was overturned by another court. It's silly to think that we can have a monument to religion erected and then just sell the land in the middle of a public park to get around the establishment problem. Let's suggest that we build churches through out the park and just sell the land the building sits on. The Parks Department then maintains all of the land, egress, parking, etc at tax payer expense. It would certainly fail the lemon test. having a clear monument to one, or even ten religions is needless entanglement. The parks should be secular in nature.

This isn't the first case like this. Mt. Soledad in San Diego happened much the same way. It was settled recently because the effing case went on for 15 years. The majority of the lower court decisions were in opposition to the acceptability of land transfers. The Supreme Court issued a stay and then the plaintiff had to go and die because it took so long. Soledad Case

Our Supreme Court is extraordinarily conservative right now. we really need judges viewed as flat out offensive to conservatives. Thurogood Marshall, Burger, etc. The idea that Scalia would say that the cross is a symbol for me is offensive. Maybe I should join the military and request that a noose be my symbol if I were to die to represent that Washington still hangs people. The cross is a symbol of torture. Our courts right now are so conservative that Scalia and Thomas said that a man who was executed after being found innocent would not be deprived of his civil rights if he were found guilty to begin with. They are an appalling offense to fairness in their adherence to "due process". The decisions of the courts in the last few years are rolling back the clocks. We really do need activist judges on the bench. We see how difficult it is to get something clearly needed like healthcare reform done. How will we ever get rid of the Faith Based Funding Office in the White House. Answer = activist judges.
Comment by Galen on October 17, 2009 at 8:19pm
That's a very good point, Jen.

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