Last October, oral arguments began in front of the Supreme Court in the case of Salazar v. Buono.
Today, the decision was announced and it was a disappointing one.
I wrote about this before, and I’ll paraphrase a part of what I wrote then. Then, we’ll get to what happened today.
The background: In the 1930s, the Veterans of Foreign Wars put up a cross in the Mojave National Preserve in California as a war memorial. No other religious group is allowed to put up symbols in the area. Ten years ago, a former employee of the National Park Service, Frank Buono, sued, saying this was a violation of the establishment clause.
In the intervening decade, Congress and the courts have engaged in a legal tug of war. Congress passed measures forbidding removal of the cross, designating it as a national memorial and, finally, ordering the land under the cross to be transferred to private hands. Federal courts in California have insisted that the cross may not be displayed.
Supporters of church/state separation were on the side of Mr. Buono. If he won the case, then it could lead to removals of other religious symbols on public property.
The New York Times supported Mr. Buono as well:
On the merits, the appeals court was right that the cross must come down. By allowing a Christian cross, and not symbols of other faiths, on federal land, the government was favoring one religion over others. Also, Congress has designated the cross as a national memorial, which means that it continues to have official government endorsement.
It also sends a message that state and church are intertwined. A single cross does not, by itself, mean America has an established religion, but if the Supreme Court stops caring that the government is promoting a particular religion, we will be down the path toward having one.
During the Supreme Court hearing, Justice Antonin Scalia expressed the absurd notion that the cross is not a symbol of Christianity. Seriously. Check out a portion of his exchange (PDF) with ACLU attorney Peter Eliasberg:
MR. ELIASBERG: … I think it would be very odd indeed for the VFW to feel that it was free to take down the cross and put up, for example, a statues of a soldier which would honor all of the people who fought for America in World War I, not just Christians, and say: Well, we were free to do that because even though there’s the sign that says, this cross is designated to honor all the —
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.
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.
So what was the result of all this?
“A Latin cross is not merely a reaffirmation of Christian beliefs,” Justice Anthony M. Kennedy wrote in a plurality opinion joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies would be compounded if the fallen are forgotten.”
Church/state separation advocates are not happy about this, with good reason.
Here’s Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State:
“I’m very disappointed,” said the Rev. Barry W. Lynn, Americans United [for Separation of Church and State] executive director. “The court majority was clearly determined to find any bogus reason to keep this religious symbol in a public park.”
Added Lynn, “It’s alarming that the high court continues to undermine the separation of church and state. Nothing good can come from this trend.”
“This decision lets Congress bypass the Constitution and devise a convoluted scheme to keep a cross on display in a federal park,” Lynn remarked. “That’s bad law and bad public policy.
“The court majority seems to think the cross is not always a Christian symbol,” Lynn continued. “I think all Americans know better than that.”
The American Humanist Association agreed:
“Predictably, five conservative justices on the Supreme Court today saw no evil in letting a Christian cross represent all Americans, notwithstanding the fact that the cross is the preeminent symbol of but one religion — Christianity,” said Bob Ritter, the legal coordinator of the Appignani Humanist Legal Center, legal arm of the AHA. “If this is not ‘an establishment of religion’ I don’t know what is.”
“It’s clear the government was willing to do anything it took in order to keep the cross in the middle of federal land,” said Roy Speckhardt, executive director of the American Humanist Association. “And now we’ll almost certainly see such shady tactics put to use again.”
Rev. Dr. C. Welton Gaddy, president of the Interfaith Alliance, sees a downside in this ruling for Christians:
“Our public parks are a sanctuary for people of all faiths and belief systems as well as none. These government-owned-and-run public places should not be used to endorse any one religion.
Two sad ironies stand out here. First, for Christians to celebrate this decision requires a will to allow the government to reject the distinct religious value the cross has traditionally held in Christianity. Second, those who have fallen in battle for our country often have done so protecting the rights that are the defining characteristics of our democracy and, specifically, our First Amendment. Central to this are our religious liberties — the ones jeopardized in this ruling by the Supreme Court.”
It’s a bad decision with bad implications when it comes to setting a precedent.
It also underscores the need to at least maintain the current political makeup of the Supreme Court through President Obama‘s next appointment. Things are prickly enough as is. It would be awful for the religious conservatives to gain any more of a foothold in this court.