April 30, 2010

The Mojave cross ruling: a blow to the 1st Amendment

The Supreme Court sends the message the government can treat a Christian symbol as a national emblem and display it on public property.

Los Angeles Times

The Supreme Court on Wednesday sent a simple — and disturbing — message in a complicated ruling about an 8-foot cross in California's Mojave National Preserve. The message is that the government can treat the preeminent Christian symbol as a national emblem and display it on public property.

The decision didn't explicitly approve the display of the cross, the successor to one erected in 1934 by a veterans group to honor fallen World War I soldiers. Nor did it render a final judgment on whether Congress acted constitutionally in approving a deal in which the Interior Department would swap the public land on which the cross stands for a privately owned five-acre parcel elsewhere, on the condition that the new owners maintain it as a war memorial. The latter question will be reexamined by the lower court that issued an order against the transfer.

But these technicalities can't obscure the fact that a majority of the justices seem willing to accept Justice Anthony M. Kennedy's assertion in the court's main opinion that "a Latin 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 patient striving help secure an honored place in history for this nation and its people." At oral arguments in the case, Justice Antonin Scalia made the same point, prompting this devastating response from the lawyer for the former National Park Service employee who challenged the display: "I have been in Jewish cemeteries. There is never a cross on a tombstone for a Jew." Yet more than 3,500 Jewish American soldiers died in World War I.

Conceivably the Veterans of Foreign Wars, which would be responsible for the memorial after the land swap, could obtain congressional approval to add a Star of David or an Islamic crescent to the cross or, better yet, to erect a memorial containing no religious symbols. But they needn't consider such alternatives given Kennedy's conclusion that the cross is a generic tribute to war dead rather than a symbol that sends what dissenting Justice John Paul Stevens called a "starkly sectarian message."

It's distressing that the court seems inclined to uphold the government-sanctioned display of the cross in a national preserve (even if it actually stands on a tiny parcel of private land). More ominously, Wednesday's decision suggests that the court is moving toward what Kennedy in his opinion called a "policy of accommodation" of religious displays — even if the only display is the symbol of a single religion. The 1st Amendment deserves better.