by David Savage
The Supreme Court said today it would decide whether the government can maintain a cross in a national park to honor fallen soldiers in the latest test of church-state separation.
The cross case will give the Roberts Court its first chance to weigh in on the First Amendment's ban on an "establishment of religion." In the past decade, the justices have been closely divided on whether religious displays, such as the Ten Commandments, can be kept on public property.
At issue now is an eight-foot tall cross in the Mojave National Preserve in southern California. It was first erected by the Veterans of Foreign Wars in 1934 and has been maintained as a war memorial by the National Park Service.
The American Civil Liberties Union objected to the cross and filed a suit on behalf of Frank Bruno, a Catholic and former Park Service employee. The suit noted that the government had denied a request to have a Buddhist shrine erected near the cross.
Two years ago, the U.S. 9th Circuit Court of Appeals ruled for the ACLU and declared the cross an "impermissible governmental endorsement of religion."
Congress has intervened to try to save the cross by transferring a small parcel of land with the cross on it to a private group. However, the 9th circuit judges were unswayed. This "would leave a little donut hole of land with a cross in the midst of a vast federal preserve," the appeals court said.
Bush administration lawyers appealed to the Supreme Court last fall and said the "seriously misguided decision" will require the government "to tear down a cross that has stood without incident for 70 years as a memorial to fallen service members." The government also questioned whether Bruno should have standing to challenge the cross, since he lives in Oregon and suffers no obvious harm because of the Mojave cross.
In a friend-of-the-court brief, the VFW, the American Legion and other veterans said the 9th Circuit's ruling, if allowed to stand, could trigger legal challenges to the display of crosses at Arlington National Cemetary and elsewhere.
The court said today it had voted to hear the case, now relabeled Salazar v. Bruno. Arguments will be held in October, and Obama administration lawyers will be in charge of defending the Interior Department and its right to maintain the cross.
The case could be an important test of church-state separation. For at least two decades, the high court has been unable to agree on a clear rule of law when confronted with religious displays on public land.
In 1984, the court narrowly upheld a Christmas season display in a Rhode Island city park because the crèche depicting the birth of Jesus was surrounded by traditional holiday ornaments. Five years later, however, the court ruled unconstitutional a holiday season display of a Christ's birth in the city building in Pittsburgh.
Four years ago, the justices took up the dispute over the Ten Commandments, but handed down two somewhat contradictory decisions on the same day. They upheld the display of the Ten Commandments on a granite monument sitting near the Texas state capitol in a 5-4 decision, but struck down the posting of the Ten Commandments in county courthouses in another 5-4 decision.
Shortly after those decisions, Justice Sandra Day O'Connor retired. She had voted in both cases against the display of the Ten Commandments on public property because they carry a religious message. Her replacement, Justice Samuel A. Alito Jr., is seen as more likely to uphold the religious displays.
David.savage@latimes.com
Comments
This is an interesting topic....without seeing the site, it is hard to put things into perspective. My initial thoughts are that the cross should stay their as an historical object, and not a religious object. It was put there by people that believed something in a snapshot time of our history. To erect something like that now would be completely out of the question. I do not see a problem with erecting a budhist shrine at the site....again.....proportion is everything here and it is hard to say without seeing.
This gets chalked up to the same way that there are many state owned churches that are part of museums and such. It is part of our history and needs to be expressed as such.
Posted by: Xcellentform | February 23, 2009 12:45 PM
The National Park Service maintains 14 cemeteries, with particular emphasis on veterans. Those cemeteries have thousands of crosses and Stars of David marking the graves of those who gave their lives in the service of their country. Does the ACLU want to remove all of those crosses also?
Posted by: Damen | February 23, 2009 1:20 PM
Damen,
These cemeteries also allow a myriad of other religious symbols. I think the problem with this particular display will hinge on the fact that it isn't so much it's a cross displayed as it is another religion was turned down for the opportunity to display a shrine near it.
Posted by: Doxy | February 23, 2009 2:31 PM
I agree with X....This should fall under some type of grandfathering clause. This was erected in a moment of time to honor soldiers....not a religion.
Posted by: bill r. | February 23, 2009 3:03 PM
With 5 Catholics, 3 of them Italians, on the Ct. I think I know how this case is going to come out.
WASPs like me have only 2 representatives on the CT. Stevens & Souter.
My ancestors came in the 17th century, yes, ya got it, seeking religious liberty.
And they were--and I am--adamantly against any state promotion of religion of any type.
"Faith based" office, begone!
Or, as I sometimes say in an ironic way:
I think all public buildings, courtrooms, airports, railway stations, etc., should have only one form of decoration: the inscription:
"In Allah we trust".
Ditto for all coins and currency.
And, on the public airwaves, every broadcast should begin:
"In the name of Allah...."
As should every speech made in every legislature....
If you get my drift.
Posted by: ornery | February 23, 2009 11:13 PM
Here is what the cross looks like:
http://www.schweich.com/imagehtml/IMG_0664sm.html
The cross was placed many years ago by local residents in what we would have described at the time as a wasteland. They meant it as a memorial, not a religious symbol. Since then our population has expanded so that we need Mojave National Preserve as a park for urban residents, and our hyper-developed sense of political correctness leads us to be offended at two intersecting pieces of metal. This entire court case is nothing more than a personal vendetta of a disgruntled park service employee against their former employer. The poor cross has been boxed, bagged, burned, sawn, and now will be argued over in the Supreme Court. The Park Service didn't put it there, and should not remove it. It's history, not religion. Please leave it alone.
Posted by: Tom Schweich | February 25, 2009 10:29 PM