The U.S. Supreme Court today raised the bar for those who express an “offense” because of the Christian faith, determining that the Mojave cross in California can remain on the knoll of rock where it has been for more than seven decades.
In the majority opinion delivered by Justice Anthony Kennedy, the court said, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”
The Mojave Cross, encased in plywood to prevent people from seeing the symbol
Kennedy was joined by Chief Justice John Roberts and Samuel Alito. Roberts and Alito filed additional concurring opinions. Antonin Scalia filed a concurring opinion that was joined by Clarence Thomas. Opposing the ruling were John Stevens, Ruth Ginsberg, Sonia Sotomayor and Stephen Breyer.
According to the Alliance Defense Fund, one of the organizations that has worked on the issue, the focal point of the case was whether someone who has suffered no harm but only claims being “offended” can sue to destroy religious references on public monuments and memorials.
That could bring significant trouble, since the Supreme Court building itself contains multiple references to the Ten Commandments, and crosses in veterans’ cemeteries also could be targeted, among many other situations.
The ruling affirms the government is allowed to resolve such conflicts “in a way that allows the memorial to remain displayed,” the ADF said.
“The ACLU and its allies should not be able to demolish war memorials based on the objection of one person who can’t seriously claim to have suffered harm from it,” said ADF Senior Counsel Jordan Lorence. “Americans want memorials to our nation’s fallen heroes protected. Congress was doing just that when it transferred the land under this memorial to the veterans’ group that cares for it.”
“A passive monument acknowledging our nation’s religious heritage cannot be interpreted as an establishment of religion,” added ADF Senior Counsel Joseph Infranco. “To make that accusation, one must harbor both a hostility to the nation’s history and a deep misunderstanding of the First Amendment.”
The Mojave Cross
WND reported when oral arguments were held that if the Supreme Court were to rule against the cross, bulldozers and sandblasters would have to be called out.
“If you tear down a seven-foot cross in the middle of the Mojave Desert, 1.6 million acres, what will you have to do to crosses in Arlington National Cemetery and all the other memorials in highly trafficked, prominent locations?” wondered Kelly Shackelford of Liberty Institute, which also worked on the Mojave cross case.
After today’s opinion was released, Shackelford said it was a “disgrace” that the cross has been covered by plywood for a decade.
“We applaud the Supreme Court for overruling the decisions below, but this battle is not over. This box must come off. No war memorial with religious imagery is safe until the court rules that these memorials, which serve to remember our fallen heroes of the military, are allowed under the Constitution.”
The high court’s decision reversed the U.S. 9th Circuit Court of Appeals and returns the case to a lower court to address the issue of the congressionally mandated transfer of the site where the cross sits to a private interest, the Veterans of Foreign Wars.
“The VFW is grateful the Supreme Court overturned the Ninth Circuit’s decision,” said Joe Davis, public-affairs director of the VFW. “As this case now goes back to the court below, this box must come down. This and every veterans’ memorial should be respected for those it honors, not covered or torn down.”
Mathew D. Staver, founder of Liberty Counsel and dean of Liberty University School of Law, said the issue is bigger than a single monument – or even all the monuments.
“Passive displays like the World War I Memorial, the Ten Commandments, nativity scenes or statements like the national motto do not force anyone to participate in a religious exercise and, thus, do not establish religion. This case reveals the extremism of the ACLU. For 75 years this cross in the Mojave Desert did not disturb anyone. It stood as a memorial to the heroes of World War I. Removing this memorial would be an insult to our war veterans. Doing so under the guise of the First Amendment is an insult to the framers of the Constitution. For now the cross will remain,” he said.
But he warned the Constitution “should not depend on 5-4 votes with fractured opinions.”
“If the courts returned to the original understanding of the Constitution, then these First Amendment religion cases would be easy. The next justice on the Supreme Court must be committed to upholding the rule of law and the original intent of the Constitution.”
Staver was referring to the fact that Justice Stevens is retiring, and President Obama already is considering candidates to replace him. Obama’s first appointment to the court, Sotomayor, joined in the minority dissent that would have ordered the destruction of the cross.
The memorial was originally erected in 1934 by the Veterans of Foreign Wars as a wooden cross with a plaque stating, “The Cross, Erected in Memory of the Dead of All Wars” and “Erected 1934 by Members of Veterans of Foreign Wars, Death Valley Post 2884.” Beginning in 1935, people gathered intermittently at the site for Easter services, which became a regular occurrence in 1984.
According to the National Parks Service, the gatherings by private parties somehow transformed the war memorial into a religious shrine of sorts and disqualified it from being included in the National Register of Historic Places. Congress then enacted a series of laws aimed at preserving the monument, including, most recently, a land exchange that would transfer ownership of the land upon which the monument rests to the Veterans of Foreign Wars in exchange for its donation of an equivalent piece of property to the Parks Service.
The ACLU, which brought the case on behalf of a retired Park Service worker, Frank Buono, instead insisted that the cross be torn down.
The majority opinion said the government’s decision to transfer ownership of the land was a reasonable resolution to an otherwise unsolveable problem.
“The 2002 injunction [saying the memorial could not remain] 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.”
Chief Justice John Roberts summed up the case in a paragraph.
“At oral argument, respondent’s counsel stated that it ‘likely would be consistent with the injunction’ for the government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them, with the VFW immediately raising the cross again. … I do not see how it can make a difference for the government to skip that empty ritual and do what Congress told it to do – sell the land with the cross on it,” he wrote. “The Constitution deals with substance, not shadows.”
A video about the dispute has collected almost 2 million views:
According to a video on the Don’t Tear Me Down campaign website, the veterans of World War I chose the rock because of the image of a doughboy that appears in its creased face under certain light conditions.
Richard Thompson, chief counsel for the Thomas More Law Center, had warned before the decision, “The ACLU hates crosses as much as vampires hate crosses or the daylight. Despite their claims to the contrary, this case is part of the ACLU’s national agenda to incrementally remove every cross on public land. Their guiding principle is ‘out of sight out of mind.’ The court’s ruling in this case will impact crosses in thousands of memorials nationwide.”