Supreme Court Hears Case about Cross Display

[Brown]

Today the US Supreme Court heard a case about a cross that was erected in a remote part of the Mojave National Preserve in southeastern California. The government had been enjoined (prohibited by a court order) from displaying this religious symbol, so the government (by act of Congress) sold a tract of land having the cross to the Veterans of Foreign Wars. The government retained a right to the property, however, in that the property would revert to the government if the monument was not maintained. The lower courts said that this little tactic was NOT effective in avoiding the injunction.

Story here from the New York times.

Read the argument transcript here.

In this thread, some people mused about whether, if a Ten Commandments monument could be maintained on government land. Although the case is probably not going to turn on that issue, that issue is in the background here.

By the way, the Supreme Court has flirted a bit with this question before, in the Ten Commandments cases, and little Bush's solicitor general had this to say:

JUSTICE STEVENS: (W)ould it equally be permissible to have a crucifix of the same size [as the Commandments monument] in the same location on the Capitol grounds?

GEN. ABBOTT: Justice Stevens, I think that would pose a much greater problem.... I seriously question whether or not a crucifix would be constitutionally acceptable in that same location.... The crucifix is not like the Ten Commandments in that it's not an historically recognized symbol of law. It doesn't send a secular message to all the people....

In this case, the solicitor general (from the Obama Administration) did NOT perversely argue that the cross had a secular meaning. But one member of the Court seemed to think otherwise:

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --

MR. ELIASBERG: I believe that's actually correct.

JUSTICE SCALIA: Where does it say that?

MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans --

JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.

(Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.

MR. ELIASBERG: Well, my -- the point of my -- point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross. This cross can't honor us because it is a religious symbol of another religion.

Justice Scalia was the only one who pursued this point. He also offered a rather strange assertion:

JUSTICE SCALIA: Of course, I will stipulate that the government was trying to arrange it so that the cross could remain there. But that doesn't mean that it was -- it was evading the injunction.

Conceding that the government wanted to get around the injuction without evading the injunction. Hmmm.

Most of the oral argument was, well, rather dull. There is a question of standing (see this thread), and lots of questions of procedural posture, and some questions about whether the government transfer of land was a sham. The solicitor general's basic case seemed to be that the land transfer was not a sham, and she made some rather interesting admissions:

GENERAL KAGAN: Mr. Chief Justice, there are certainly limits to the way that the government can transfer property, and I would give you a few of them. If -- if it was not a bona fide sale, so that there wasn't proper consideration; if -- if there was only religious purpose, so that there was no secular purpose involved; or if after the sale the property was indistinguishable from government property, so that everybody naturally thought that this was government property. In those cases --

CHIEF JUSTICE ROBERTS: Well, why isn't that -- why isn't that the case here?

GENERAL KAGAN: In fact, it's not the case here. And it's not the case for two reasons. First, the preserve is riddled with private inholdings. There are 1800 private landowners with -- excuse me, 1,000 private landowners with 1800 plots of land. [Second,] in addition to the fact that private inholdings just riddle the preserve, the government is perfectly happy to put up signs which make clear that the -- the plot in question will not in fact be the government's, but will be the VFW's.

Some discussion followed about the nature of the sign (or signs), where it would be put, what it would look like, etc. It is unlikely that the case is going to turn on such relative trivialities ... unless the Court decides to adopt different standards for evaluation of Establishment cases, which it did not indicate it might do.

 

[Roma]

Well there could be an argument that it is now an historical geographical alteration of that desert site and therefore removing it would be an additional alteration of that site and could require an enviromental assessment to determine the consequences of such a removal. Is there a burrowing owl nest anywhere around it?

Anyhoooo...I'm not really joking.
The cross was erected in the 1930's

"The cross in the desert was erected in the 1930s by the Veterans of Foreign Wars to honor fallen service members"
http://www.nytimes.com/2009/10/08/us/08scotus.html?_r=2&hp

And since it was erected such a long time ago it could easily be considered an historical geographical alteration to the desert site and should not be removed because of the historical significance to that alteration. Also please note that the above statement doesn't say all fallen service members.

There is an old Indian bison jump site in Alberta, oh I think it is a few hundred years old, that was sprayed with high school graduation graffitti about thirty years ago.
Some people were absolutely outraged by the vandalism and wanted the spray painting removed but historians stepped in and argued that it was a cultural addition to the site and an historical alteration, so it is still there for as long as spray paint lasts I guess.

 

[lionking]

So much injustice, hatred and crime in the USA (yes and other nations as well) and the Supreme Court is wasting it's time on a cross in the desert?

Jesus wept.

 

[Policenaut]

Exactly what I was thinking. This is nonsense. Who cares about an 80 year old cross memorial in the middle of the desert?

 

[psychictv]

FFS, Scalia is such a moron.

Anyhoooo...I'm not really joking.
The cross was erected in the 1930's

According to another thread, that was a different cross. It was missing for a while and was reconstructed in the '90s while it was already public land.

 

[Roma]

FFS, Scalia is such a moron.



According to another thread, that was a different cross. It was missing for a while and was reconstructed in the '90s while it was already public land.

Still could be argued under historical geographical alteration,
wouldn't make any difference to historians that it is a cross, it could be a big barber pole and still count as an historical alteration to the landscape of that desert site.
The fact that it is a cross just adds the element of Christianity that seems to be a favorite lighting rod for the ACLU.

 

[psychictv]

I don't know the details, but if the cross wasn't there when it became Federal land and it was reconstructed later it would be hard to argue for its historical importance. At any rate I think the current plan makes the most sense. Trade an acre around the cross for five acres elsewhere and be done with it.

 

[Roma]

I don't know the details, but if the cross wasn't there when it became Federal land and it was reconstructed later it would be hard to argue for its historical importance. At any rate I think the current plan makes the most sense. Trade an acre around the cross for five acres elsewhere and be done with it.

I don't think it would matter what deal was offered the ACLU is still going to fight to the death to have that cross removed.

 

[psychictv]

I don't think it would matter what deal was offered the ACLU is still going to fight to the death to have that cross removed.

That's fine, it should be removed. The ACLU didn't nix the land transfer deal, the courts did.

And here's the quote from the other thread.

The current version of the cross was built by Henry Sandoz, a local resident, sometime in 1998. When NPS investigated the history of the cross, Sandoz explained that he drilled holes into Sunrise Rock to bolt the cross in place, making it difficult to remove. Sandoz did not receive a permit from NPS to construct the cross.

 

[Lurker]

I just do not understand Scalia's mindset or anyone that agrees with him here. How can he possibly argue that a cross commemorates non-Christian war dead as well? Is the memorial devoid of any religious connotation at all in his mind even though it has a cross? does he really think everyone embraces the cross as a symbol of honor and respect for the dead?

I just don't get Scalia.

 

[Brown]

I just do not understand Scalia's mindset or anyone that agrees with him here. How can he possibly argue that a cross commemorates non-Christian war dead as well? Is the memorial devoid of any religious connotation at all in his mind even though it has a cross? does he really think everyone embraces the cross as a symbol of honor and respect for the dead?

I just don't get Scalia.

His view seems to be consistent with his notion that everybody reveres and is honored by Christianity and Christian symbols, including non-Christians. From Justice Scalia's dissenting opinion in the McCreary case, which was one of the Ten Commandments cases:

The three most popular religions in the United States, Christianity, Judaism, and Islam--which combined account for 97.7% of all believers--are monotheistic. [Authority.] All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. See 13 Encyclopedia of Religion 9074 (2d ed. 2005); The Qur'an 104 (M. Haleem trans. 2004). Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population--from Christians to Muslims--that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint. (emphasis mine)

Justice Scalia made this pronouncement in spite of briefs from Muslim groups that it was not strictly true, and in spite of the following exchange that occurred during oral argument in the other Ten Commandments case, the Van Orden case, which was heard and decided at the same time:

JUSTICE SCALIA: I thought Muslims accept the Ten Commandments.

MR. CHEMERINSKY: No, Your Honor, the Muslims do not accept the sacred nature of the Ten Commandments, nor do Hindus, or those who believe in many gods, nor of course, do atheists.

It is strange that a Justice of the US Supreme Court seems to think that he somehow has any knowledge or wisdom to decide: that monotheism ought to be entitled to "preferred constitutional status" (as Justice Stevens put it); or that government can rule as a matter of law that a deity of some sort DOES exist, and therefore atheism is in error; or that it is an established fact (and not a matter of opinion) that a particular version of the Ten Commandments represents an actual message to humanity from a deity; or that the deity ought to be honored or acknowledged in a particular fashion; or that he can resolve issues of what Muslims religiously accept or revere, even though the Muslims themselves have had difficulty with this notion for more than a millenium; or that the United States derives its governing power from a deity, in spite of contrary statements in the Declaration of Independence, the Constitution, and the country's history of breaking away from a monarchy that purported to rule by divine right.

 

[Brown]

In the Van Orden case (one of the Ten Commandments cases), Justice Thomas had this to say (in a concurring opinion) about the case now before him:

Similarly, a park ranger has claimed that a cross erected to honor World War I veterans on a rock in the Mojave Desert Preserve violated the Establishment Clause, and won. See Buono v. Norton, 212 F. Supp. 2d 1202, 1204-1205, 1215-1217 (CD Cal. 2002). If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge.

Hyperbole, ignorance and muddled "reasoning" like this are unbefitting a Supreme Court Justice.

 

[Brown]

Cross-reference to a thread in Social Issues & Current Events.

 

[HarryKeogh]

So much injustice, hatred and crime in the USA (yes and other nations as well) and the Supreme Court is wasting it's time on a cross in the desert?

Jesus wept.

I know. I can't believe the Supreme Court is wasting their time looking into possible violations of the United States constitution.

 

[Brown]

Here's a link to Dahlia Lithwick's commentary from Slate.com. Of interest is that Dahlia typically attends the oral arguments, and therefore is in a position to comment upon the demeanor of the participants, an aspect that often gets lost in the transcripts:

"I don't think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead," thunders Scalia. "I think that's an outrageous conclusion!" (italics and exclamation point are Lithwick's, as is the "thunders" description)

Dahlia shares my assessment that the oral argument was not as exciting as it could have been:

Thus most of the morning is lost to a protracted civil-procedure exam question.

 

[psychictv]

I know. I can't believe the Supreme Court is wasting their time looking into possible violations of the United States constitution.

I know, think of all of the crime that's going on every day. The SCOTUS should be trying armed robbery cases instead!

 

[Lurker]

Thanks for the addnl info, Brown. Very informative.

See, this is why whenever I see a thread started by Brown about the Supremes it is a must-read.

 

[pgwenthold]

Exactly what I was thinking. This is nonsense. Who cares about an 80 year old cross memorial in the middle of the desert?

According to the lawyer, Jewish veterans.

Screw them, right?

 

[Rolfe]

Some people quoted in the OP don't seem to know the difference between a cross and a crucifix. Oh dear.

(Just in case, a cross is a cross, a crucifix is a cross with the body of Jesus hanging from it. Get that wrong in west central Scotland - or I assume in Northern Ireland - at your peril.)

Rolfe.

 

[jadebox]

Some people quoted in the OP don't seem to know the difference between a cross and a crucifix. Oh dear.

crucifix:
1) An image or figure of Jesus on the cross.
2) A cross viewed as a symbol of Jesus's crucifixion.

-- Roger