Dodging the Bullet

For the moment we have dodged the bullet. The Justices of the Supreme Court have ruled, five to four, that an eight foot-high cross in the Mojave Desert may be allowed to stand as a monument to the fallen of World War I.  The original cross (wooden) was erected in 1934 by veterans of the war that had ended in victory for the Western Allies sixteen years before. Replacements of the original monument have been installed from time to time as conditions warranted. The latest replacement (cast in white metal) has been encased in a wooden box pending the Supreme Court's ruling. Presumably it will now be allowed to be seen by the public even though at least one American citizen, Frank Buono, supported by the ACLU, finds its public display "offensive".  No doubt others will find it offensive, too. The editors of the New York Times and ultra- left-wing billionaire George Soros might well be reckoned in their number. It's worthy of note that the recently installed Justice Sonia Sotomayor voted with the minority to BAN public display of the cross. If in the near future an anti-cross majority comes to dominate the court, as new vacancies are filled, one wonders if all of the crosses in our national cemeteries will have to be removed? And will the observance of Memorial Day have to be stripped of any and all religious reference?

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May I share with you the account of the Supreme Court's ruling that appeared in the national edition of the Washington Times for May 3, 2010.

Mojave Cross Can Stay, High Court Rules
By Valerie Richardson
The Washington Times, Monday, May 3, 2010

An 8-foot cross honoring fallen soldiers in the remote Mojave National Preserve in California can stay where it is, because the Supreme Court said on April 28 that the Constitution NO WHERE  REQUIRES the "eradication of all religious symbols in the public realm."

Justice Anthony M. Kennedy, writing the lead opinion in a 5-4 decision in which several justices wrote separate concurrences and dissents, compared the Mojave Cross to a hypothetical highway mernorial marking the death of a state trooper to make the point that such displays "need not be taken as a statement of governmental support for sectarian beliefs."

"The Constitution does not oblige government to avoid any public acknowledgement of religion's role in society, ' Justice Kennedy said in his opinion. "Rather it leaves room to accommodate divergent values within a constitutionally permissible framework."

 Leading the dissent was Justice John Paul Stevens, who called the war memorial "unprecedented" in its starkly religious tone.

"Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect" said Justice Stevens, who recently announced his plan to retire. "As far as I can tell, however, it is unprecedented in the nation's history to designate a bare, unadorned cross as the national war memorial for a group of veterans."

The justices didn't rule technically on the constitutional issue of whether the cross constitutes an establishment of religion. However, they declined to rule that the cross was a first Amendment VIOLATION, as asked, and the majority justices' language indicates a more benign view of religious expression on public lands.

Instead, the justices sent the case, Salazar v. Buono, back to a federal lower court and told the judge to took again at how the constitutional issues are affected by a congressional plan to transfer the federal land beneath the 8-foot cross to a veterans group. Lower federal courts had said the transfer was insufficient, a finding the justices implicitly rebuked.

Voting with Justice Kennedy in favor of keeping the cross was the court's conservative bloc, Chief Justice John C. Roberts Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas. Opposed were Justices Stevens, Ruth Bader Ginsburg, Sonia Solomayor and Steven G. Breyer.

The American Civil Liberties Union filed the lawsuit on behalf of Frank Buono, a former assistant superintendent at Mojave National Reserve, who said that the memorial offended him. The original cross was erected atop an outcropping known as Sunrise Rock in 1934 by World War I veterans.

A federal court ruled in Mr. Buono's favor and ordered the removal of the cross, but Rep. Jerry Lewis, California Republican, inserted language into a defense approptiations bill declaring the cross site a national memorial.

Mr. Lewis also arranged the SALE of an acre of land surrounding the Mojave Cross to the Barstow Veterans of Foreign Wars, thus placing the cross on PRIVATE land.

The ACLU argued that the land transfer was a calculated effort to circumvent the court ruling, and the 9th U. S. Circuit Court of Appeals [sometimes described as the "nut case court" in view of the staggering percentage of its rulings that have been overturned by the Supreme Court] saying the land transfer "would leave a little donut hole of land with a cross in the midst of a vast federal preserve."

But the lower court "did NOT acknowledge the STATUTE'S significance," Justice Kennedy said.

Peter Eliasberg, managing attorney for the ACLU of Southern California, said the organization would continue to argue that the land transfer failed to address concerns over the separation of church and state.

"Although we're disappointed by today's decision, we're encouraged that the case is not over," Mr. Eliasberg said. "The cross is unquestionably a sectarian symbol, and it is wrong for the govennnent to make such a deliberate effort to maintain it as a national memorial."

The Mojave Cross is now encased in a plywood box, hidden from view while litigation is on-going. The original wooden cross has been replaced several times, and the current version is constructed of white metal.

"Congress has repeatedly voted overwhelmingly to protect the Mojave Cross as a memorial to veterans and those who have died to defend our nation, never intending it to be preserved as a religious symbol," said Mr. Lewis, whose district includes the desert area where the cross is located.

"I am gratified that the Supreme Court has upheld the right and authority of Congress to seek these solutions in memory of our veterans," he said.

The decision came as a victory for religious-freedom groups fighting efforts to eliminate religious symbols and references from the public square.

"A passive monument acknowledging our nation's religious heritage cannot be interpreted as an establishment of religion," said Joseph Infranco, senior counsel of the Alliance Defense Fund, which filed a friend-of-the-court brief defending the cross. "To make that accusation, one must harbor both a hostility to the nation's history and a deep misunderstanding of the First Amendment."

Eric Rassbach, national litigation director of the Becket Fund for Religious Liberty, which also filed a brief in the case, applauded the ruling as "simple common sense."

"The First Amendment guarantees the right to speak and believe freely; it does not give busy-bodies the right to cut down religious symbols they don't like," Mr. Rassback said.

At the same time, the ruling leaves unanswered several questions, such as what legal standard should be applied to religious displays on public property, according to the Becket Fund. 

The cross supporters had feared that an unfavorable ruling would have jeopardized the nation's hundreds of cross-bearing roadside memorials, as well as other war memorials.

At least two other cross cases are in federal court. One concerns a 29-foot cross at a war memorial on Mount Soledad near San Diego and the other the 12-foot roadside crosses that Utah uses to memorialize highway patrol troopers killed in the line of duty.
[Emphasis added].