Supreme Court Embraces Congressional Scheme to Maintain Cross Inside Federal Park

April 29, 2010

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The Supreme Court yesterday dealt yet another blow to the separation of church and state.  In a 5-to-4 decision , the Court overturned a lower court ruling striking down a congressional legislative scheme to maintain an eight-foot Christian cross in California's Mojave National Preserve. The case will be remanded to the lower courts for further proceedings, with the likely result that the cross will remain standing.

CFI submitted an amicus brief to the Supreme Court last year urging the Justices to reject Congress's attempt to designate the cross a national memorial and to transfer the patch of land on which the cross stood to the private party that first erected it.  Yesterday's decision opens the way for such formalistic devices to multiply across the country as a court-sanctioned way to feign compliance with the Establishment Clause.

The cross display in question was originally erected by the Veterans of Foreign Wars in 1934, and has since been replaced several times by private citizens.  In 1996, Buddhists applied to the National Park Service (NPS) to erect a Buddhist shrine near the cross, but were denied.  Frank Buono, a former Preserve employee and a Catholic, filed suit in federal district court to prevent the permanent display of the cross. A federal appellate court twice ruled that the cross violated the Establishment Clause and ordered it removed.  In 2003, Congress passed legislation declaring the cross a "national memorial" and ordering the transfer of the cross and the patch of land beneath it to private hands.  CFI declared that this legislative scheme was a transparent effort to keep the Christian symbol in place. 

One might think that a Latin cross is a sectarian symbol that cannot help but carry obvious religious significance.  As soon-to-be-retired Justice John Paul Stevens put it in his forceful dissent, the cross "necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ." 

The conservative majority, however, thought otherwise.  Justice Anthony Kennedy, in a plurality opinion joined by the conservatives Justice Samuel Alito and Chief Justice John Roberts, wrote that the cross is no mere religious symbol.  According to them, the cross is also a secular piece of Americana that honors all the nation's war dead, whether Christian or not:

The Cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions and, and patient striving help secure an honored place in history for this Nation and its people.

Justice Alito employed a similar flourish in his separate concurring opinion:

[T]he symbol that was selected, a plain unadorned white cross, no doubt evoked the unforgettable image of the white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict.

Justice Stevens countered that "Making a plain, unadorned Latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian."

The conservative majority's endorsement of a sectarian religious symbol for purportedly non-religious purposes should disturb religious and secular Americans alike.  When Buono's attorney encountered the majority's reasoning on this point during oral argument, he retorted: "I've been in Jewish cemeteries. There is never a cross on a tombstone of a Jew." 

Thankfully, the Court left intact - at least for now - the existing legal doctrine on "standing" - i.e., the right to sue. The government argued that plaintiffs like Buono should be turned away at the courthouse steps because their views reflect mere psychological harm or disagreements as to policy, as opposed to purportedly valid objections arbitrarily deemed "spiritual." CFI argued that the government's proposed new "spiritual injury" requirement for standing would risk creating an improper hierarchy of belief systems, denying access to the courts by secular humanists and others whose views are not based on religious tenets. CFI argued further that it would force the Court to wade into the quagmire of deciding what constitutes a religious belief, further muddying the standing inquiry.

Only two Justices - Justice Clarence Thomas and Justice Antonin Scalia - voted to deny the plaintiff standing because Buono, as a Catholic, was not personally offended by seeing the cross.  According to Buono, he was offended not by the cross itself, but by the government's display of the cross in violation of the constitution.  Justices Kennedy, Alito and Roberts did not agree or disagree with this reasoning, but stated that the government was procedurally barred from arguing against Buono's standing at this point in the case.

Salazar v. Buono is the first major Establishment Clause decision handed down by the Roberts Court.  It does not bode well for the future of the First Amendment's ailing wall of separation between church and state.


#1 Michael Labeit (Guest) on Thursday April 29, 2010 at 3:53pm

What is the legal status of crosses-as-tombstones on government military cemeteries?

#2 Derek C. Araujo on Thursday April 29, 2010 at 4:01pm

Crosses on tombstones of fallen Christian soldiers are allowed in government cemeteries, as they express the religious views of the deceased, not of the government.  Moreover, government cannot bar symbols of minority religions on tombstones.  The tombstones of fallen Jewish soldiers typically display the star of David; Wiccan symbols, and even atheist symbols, can also appear on tombstones.  See

#3 J. (Guest) on Thursday April 29, 2010 at 7:03pm

As a result of the alliance of christian extremists and the political right there is no lack on the Supreme Court of those who want nothing less than to effectively negate the separation of church and state as a foundation stone of American law. Is anyone, pro or con, surprised by the decision?

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