Supreme Court gets technical in arguments on Mojave cross

WASHINGTON (ABP) — Although the case of a lonely cross on federal land in California’s Mojave Desert ultimately could have wide-ranging implications for the separation of church and state, justices on the Supreme Court spent much of the Oct. 7 oral arguments asking attorneys about highly technical and procedural issues.

Justices heard from attorneys for both sides in the Salazar v. Buono case (No. 08-472). While supporters of strong church-state separation had feared that the court might use the case to severely limit the ability of plaintiffs to file lawsuits against the government for promoting religion, justices spent much more time debating whether the case could be decided on the narrower grounds of whether congressional action attempting to preserve the cross was permissible.

“The injunction says the government is enjoined from permitting the display of the Latin cross, period. Once this law takes effect and you follow it, you are violating that injunction. You don't need nine proceedings to see that; you’re violating it,” said Justice Steven Breyer, speaking to Solicitor General Elena Kagan, who argued for the cross on behalf of the Obama administration.

The cross — a predecessor of which was first erected as a World War I memorial in 1934 — stands atop Sunrise Rock, next to a road in a remote part of the Mojave National Preserve.

Although several crosses erected by private groups have stood on the spot over the years, the current version was built of painted metal pipes by a local resident in 1998.

The next year the National Park Service, which oversees the land, denied an application to build a Buddhist shrine near the cross.

The agency studied the history of the monument and, determining that it did not qualify as a historic landmark, announced plans to remove it. Congress intervened with a series of amendments to spending bills that effectively preserved the cross.

In 2001 Frank Buono, a Catholic and a retired National Park Service employee who once worked at the preserve, filed suit with the help of the American Civil Liberties Union. They claimed that the cross violated the First Amendment’s ban on government establishment of religion.

A series of federal-court decisions ruled against both the cross and the government’s attempts to preserve it through legislative maneuvers. In 2007, the 9th U.S. Circuit Court of Appeals ruled against one of the congressional actions, which ordered the government to give a tiny parcel of land under the cross to the Veterans of Foreign Wars in exchange for a privately owned plot elsewhere in the park. President Bush's administration appealed the ruling, and Obama’s Justice Department continued to defend the congressional action as valid.

In the Oct. 7 arguments, much of the discussion turned on the procedural validity of Kagan’s assertion that the government action to remedy the constitutional violation was sufficient.

But a few moments of argument did highlight one significant First Amendment controversy in the case: Whether such a monument on public land could serve a secular purpose. In response to an assertion that the cross did not honor non-Christian war dead by Los Angeles attorney Peter Eliasberg, who argued Buono’s side in the case, Justice Antonin Scalia asked, “The cross doesn't honor non-Christians who fought in the war?”

Eliasberg responded, “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….”

Scalia replied, “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 … most common symbol 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 Muslim half moon and star?”

“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,” Eliasberg retorted, to laughter in the courtroom.

The justices barely discussed one issue that had worried church-state separationists significantly about the case — whether Buono had legal standing to sue the government over the cross in the first case.

In court filings, attorneys for the Obama administration had argued that Buono should not have had the right to challenge the cross because, among other reasons, he is a Christian and presumably is not injured or offended by the sight of the cross.

A friend-of-the-court brief filed by the Baptist Joint Committee for Religious Liberty and the Interfaith Alliance said that argument, if accepted, would lead to gross violations of religious freedom.

The brief argued that Buono had every right, as a Christian, to feel injured by the government’s endorsement of his religion because such an endorsement inherently damages the faith.

“Seeing one’s faith receive preferential government treatment, while aware that no minority faith would receive that treatment, demonstrates the government’s perversion of religion for its own ends,” the brief said. “The government is taking something that should be a symbol of voluntary religious belief and practice and using it in a way that alters its apparent symbolism by making it look like an ‘official’ faith.

“It is not surprising that devout, voluntary adherents of a religion would not want to send the signal to those who do not share in the religion of the majority that they are political outsiders. Where the government endorses one religion over all others, it weakens the sanctity of that religion and its beliefs.”

But Holly Hollman, the BJC’s general counsel and one of the authors of the brief, said she was somewhat relieved by the tenor of the oral arguments in the case.

“There were more questions about the government's ability to raise a standing defense than about Mr. Buono's standing. While certainly not determinative of how the court will rule, there appeared to be less  interest in limiting standing in this case than we feared,” she said.

Hollman added that one way the court could dispose of the case without doing much damage to religious liberty would be to “find that Congress took adequate steps to distance the government from the cross by selling it to a private landowner. I think there will be significant divisions among the members of the court on the specific facts that weigh for and against that conclusion.”

–Robert Marus is managing editor and Washington bureau chief for Associated Baptist Press.

Related items:

Transcript of oral arguments in Salazar v. Buono

Baptist Joint Committee/Interfaith Alliance amicus brief in Salazar v. Buono

Supreme Court agrees to hear case involving cross on federal land (2/23)