Supreme Court Hears Case about Cross Display

Really nice to see Scalia considering the issues without any influence from his personal experience and biases, just what we want to see in an SCJ...:)
 
Rolfe said:
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.)
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There are some distinctions between a cross and a crucifix, of course, but they ought not to be pertinent to this case.

Just curious: Do any groups use a crucifix as a grave marker (especially for men and women in military service), the way they use crosses? Is a crucifix used as a monument to the dead in Northern Ireland or Scotland?

One case in which the cross/crucifix distinction MIGHT be pertinent in the USA is in connection with a memorial for the victims of the World Trade Center events. As has been widely reported (see snopes.com, for example), some of the building wreckage included beams roughly in the shape of the iconic cross. Including this "cross" in a national monument might be acceptable, while including a crucifix might not.

Now, it had been pointed out that in any building having several crossing beams joined together, destruction of the building is likely to leave remnants in which a joint is intact but the beams are broken off. Although there is a disagreement about whether a genuine miracle occurred at the World Trade Center site (in which the Almighty bent the laws of physics to generate a religious symbol in the debris while not lifting a finger to prevent the murder of thousands of innocents), there is no question that the "cross" is a legitimate artifact and that many people attributed some sort of meaning to it.

Had the wreckage generated a crucifix rather than a mere cross, well....
 
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pgwenthold said:
According to the lawyer, Jewish veterans.

Screw them, right?
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Why did Jewish veterans wait 80 years to complain if they thought this was inappropriate? Let's look at this from the first link:

"Supreme Court argument on Wednesday about the fate of a cross in a remote part of the Mojave National Preserve in southeastern California largely avoided the most interesting question in the case: whether the First Amendment’s ban on government establishment of religion is violated by the display of a cross as a war memorial."

"The cross in the desert was erected in the 1930s by the Veterans of Foreign Wars to honor fallen service members. Ten years ago, Frank Buono, a retired employee of the National Park Service, objected to the cross, saying it violated the establishment clause. "

First off this cross is in an isolated spot in the middle of Death Valley. The lawsuit was brought about not by a Jewish vereran but Frank Buono, an employee of the NPS (and supposedly a roman catholic) who is probably one of only a handful of people that even knew about this cross let alone seen it.
 
Brown said:
Hyperbole, ignorance and muddled "reasoning" like this are unbefitting a Supreme Court Justice.
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But a spot on fit for Thomas.

Thanks for keeping us up to date on this. I could not believe what I heard coming out of Scalia's mouth (really Nina Totenberg's) last night.

Daredelvis
 
lionking said:
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.
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Nothing the Supreme Court does is unimportant. You forget the SCOTUS isn't just deciding this case, it is deciding all similar cases for decades to come.
 
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Policenaut said:
Why did Jewish veterans wait 80 years to complain if they thought this was inappropriate? Let's look at this from the first link:
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Well at the time they might have had more pressing things on their mind like Henry Ford publishing the protocalls of the elders of zion, and distributeing anti semetic literature at all the dealerships.

Ah the good old days...
 
I say leave the "cross in a box" as it is now and put a plaque beneath it calling it :

A national monument to religious intolerance

people from all over the world will come to see this curiousity
 
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When this case was being postured for presentation, observers expected that the issue to be discussed was standing. (Standing in establishment cases, which pertains to which persons have the right to maintain a lawsuit, was a key issue in the Hein case, discussed in this thread. I am on record as saying that there is concern that the Court has had difficulty separating "the merits" of a case—whether the suit has legal and factual validity—from standing—which is directed to whether the person bringing suit has a legally recognized stake in the outcome.)

The members of the Supreme Court talked about standing ... sort of. Justice Ginsburg addressed the issue first, saying that the issue was whether the government was complying with the injunction, and the one who moved for the injunction "has unquestioned standing to enforce the injunction." Although the solicitor general tried to offer reasons why the issue of standing had not been litigated previously, there was some question as to whether the government ought to try to win on the issue now when (for tactical reasons) it did not think the issue was worth raising earlier:
JUSTICE SOTOMAYOR: If you thought that he didn't have standing to challenge the cross at all and that the injunction itself directing you to cover up the cross was wrong, you should have come to the Court.
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No one really talked about whether Buono had standing. Rather, the issues seemed to revolve around whether the government could challenge his standing, because the government did not appeal on the issue of standing with respect to the injunction that Buono obtained.

Curiously, though, this case seemed to involve elements that indicated that somebody had standing. The facts of the case showed that another religious group wanted to erect its own monument, and its request was denied. In the Hein case, Chief Justice Roberts seemed to think that discrimination conferred standing:
CHIEF JUSTICE ROBERTS: Any, presumably any other denomination that is not of the established church could bring a challenge that they're being discriminated against....
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lionking said:
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.
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Policenaut said:
Exactly what I was thinking. This is nonsense. Who cares about an 80 year old cross memorial in the middle of the desert?
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Nobody. But we do all care if there's a cross in the school and at the DMV and so on, with people sitting around watching if you praise it or not, or even leading the prayers.

You fight the battle on the silly or far-out, borderline grounds. The further, the better, because the farther away it is from impacting important activities. Similarly, this is why freedom of speech fights fierce battles on the area of pictures, art, porn, and flag burning.
 
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Roma Hart said:
... it could be a big barber pole and still count as an historical alteration to the landscape of that desert site.
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Errrrrm...Wasn't there a codicle in there about the requirement that the site be maintained in perpetuity?

FAIL.

The fact that it is a cross just adds the element of Christianity that seems to be a favorite lighting rod for the ACLU.
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The problem is the assumption that a cross is the proper way to denote the graves of ALL veterans, because this is a "Christian country." This is, of course, bull flops.
 
Brown said:
The decision has been issued:

http://www.supremecourt.gov/opinions/09pdf/08-472.pdf

Apparently the cross gets to stay. The decision is fractured. No majority could agree on a rationale. More to follow.
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I'd like to hear what you have to say about Clarence Antonon Thomas Scalia's position, that he doesn't have standing.

I almost think that if Congress passed a law that decreed Christianity to be the official religion of the US, no citizen of the US could fight it because they wouldn't be granted standing.
 
This is an ugly one.

As noted above, the procedure played a major role in the case; it wasn't simply a case asking whether a cross was a religious symbol. Indeed, the placement of a cross on public land was determined by a lower court to be constitutionally improper, and that ruling was not challenged before the Supreme Court. Buono obtained an injunction that barred Government from having this cross at this location. What WAS at issue before the Supreme Court was the Government's tactic of selling the land around the cross and the cross itself to the VFW. With this little cute technique, the cross no longer stood on "public" land.

Buono went to court again, saying the Government was violating the injunction. He won, both at the district court and appellate court levels. But the Supreme Court reversed.

A majority of the Court (including some who dissented) agreed that Buono had standing to bring the suit. Justices Scalia and Thomas did not think that Buono had any standing to enforce the injunction that he got. (In Scalia's mind, Buono was trying to EXPAND the injunction because the injunction only dealt with a cross on government-owned land ... even though the injunction did not actually say that.)

Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, basically said that the lower courts looked at the land transfer in the wrong way. Basically, the lower courts thought that the government had improper motives, therefore the transfer was wrong. Justice Kennedy said:
By dismissing Congress's motives as illicit, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage. Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World War I. Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message. [Authority.]Placement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation's fallen soldiers. See Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 15 (noting that the plaque accompanying the cross "was decorated with VFW decals").

Time also has played its role. The cross had stood on Sunrise Rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness.
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The 2002 injunction thus 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. (emphasis mine)
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Got that? Justice Kennedy agreed with the point made by Justice Scalia at oral argument, namely, that the cross honors EVERYONE, regardless of religious beliefs. To remove the cross is to diss ALL of the country's fallen soldiers.

In spite of those pronouncements, Justice Kennedy left undecided whether what the government did was actually proper. He and Chief Justice Roberts thought the case ought to be sent back to the lower courts to decide the constitutional question in the proper way.

Chief Justice Roberts issued a small opinion that focused upon the cosmetic nature of relief being sought:
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. Tr. of Oral Arg. 44. 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. "The Constitution deals with substance, not shadows."
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It may be argued that Roberts misstates the record, in that Buono's lawyer was asked to assume MORE than what Roberts said, and in fact counsel said (twice!) that the assumptions were not accurate. But leaving that issue aside, there is an irony in Roberts's discussion of the cosmetic nature of the remedy, since what the Government did—change nothing on the land but shuffle some papers so that the land technically belonged to the VFW—was little more than a cosmetic change. Roberts would apparently give the green light to similar sham land transfers, which could (perhaps would) lead to erection of all sorts of religious symbols on what people THOUGHT was public land, but was actually a small plot owned by a private entity.

Justice Alito agreed with Justice Kennedy on every point, except:
I would not remand this case for the lower courts to decide whether implementation of the land-transfer statute enacted by Congress in 2003, Department of Defense Appropriations Act, 2004, § 8121, would violate the District Court's injunction or the Establishment Clause.
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There is also no merit in JUSTICE STEVENS' contention that implementation of the statute would constitute an endorsement of Christianity and would thus violate the Establishment Clause.... Here, therefore, this observer would be familiar with the origin and history of the monument and would also know both that the land on which the monument is located is privately owned and that the new owner is under no obligation to preserve the monument's present design.... (A) well-informed observer would appreciate that the transfer represents an effort by Congress to address a unique situation and to find a solution that best accommodates conflicting concerns.
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The mind boggles. Not only is this "reasonable observer" analysis unsupported by precedent (even Justice Kennedy says that such an analysis is generally improper and questions its usefulness in any respect), the rationale as applied by Justice Alito is impractical, irrational and total bunk. Like Roberts, Alito would give the green light to shams.

Justice Stevens, joined by Justices Ginsburg and Sotomayor, dissented. Justice Breyer filed a dissenting opinion.
 
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What if *I* wanted to buy the land in question and was willing to pay more than the VFW did? Shouldn't I get preference then? Why is the bidding for the land in question closed? Seems quite preferential to me.
 
In dissent, Justice Stevens poined out that certain things HAD been established in the litigation. The cross is a religious symbol, and that the "reasonable observer" test of which Justice Alito was so fond would involve him substituting his judgment for the finder of fact:
Accordingly, for the purpose of this case, it is settled that "the Sunrise Rock cross will project a message of government endorsement [of religion] to a reasonable observer," ... and that the District Court's remedy for that endorsement was proper.
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(T)he District Court properly recognized that the transfer was a means of "permitting"—indeed, encouraging—the display of the cross. The transfer therefore would violate the terms of the court's original injunction.
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The Government had been enjoined from "permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve." To Justice Stevens, "permitting" could include a land transfer that had NO other purpose (at least none supported in the record) but to keep the cross up. (To Justice Scalia and others, "permitting" mean only "permitting on public land.") Stevens also pointed out that even if the land was someone else's, the cross was the Government's, the Government having designated it as a national memorial.

Getting to the heart of it, Justice Stevens laid out that the Government DID endorse a religious symbol, and improperly so. The question before the Court was "whether the transfer would end government endorsement of the cross."
In my view, the transfer ordered by § 8121 would not endgovernment endorsement of the cross for two independently sufficient reasons. First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding that the name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display. Congress' intent to preserve the display of the cross maintains the Government's endorsement of the cross.

The plurality does not conclude to the contrary; that is, it does not decide that the transfer would end government endorsement of the cross and the religious message it conveys. Rather, the plurality concludes that the District Court did not conduct an appropriate analysis, and it remands the case for a do-over.
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Although Stevens hits upon the "reasonable observer" analysis, he does not treat it as a strict legal test. If the Government erected a religious symbol, THAT ALONE would indicate an endorsement, regardless of what an observer might or might not know. And when the Government makes changes that are merely cosmetic (such as a transfer of land but otherwise outward appearances being basically the same), then the reasonable observer would not be able to tell the plainly improper endorsement from the cosmetically altered one. The illegal display and the legal display look exactly the same!

Justice Stevens also felt is was necessary to repeat what should be clear, that the "solitary cross conveys an inescapably sectarian message. ... Making a plain, unadorned Latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian."

In his dissent, Justice Breyer felt the issue could be decided without getting into constitutional questions at all:
The legal principles that answer the question presented are found not in the Constitution but in cases that concern the law of injunctions.
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The injunction forbids the Government to permit the display of the cross on Sunrise Rock, and its basic purpose was to prevent a reasonable observer from believing that the Government had endorsed the cross. Under the circumstances presented to the District Court, the transfer would have resulted in such a display and might well have conveyed such a message. Consequently, the District Court's decision that the land transfer violated the injunction as written and intended was not an abuse of discretion. And that is what the Ninth Circuit properly held on appeal. What the Establishment Clause implications of the changed circumstances may be is a matter not before us.
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