A badly divided Supreme Court has overturned a good ruling against a cross that sits on federal land. The opinions did not provide much guidance but, over all, are likely to encourage those who want to entangle government and religion.
In 1934, private citizens put a cross on federally owned land in what is now the Mojave National Preserve in California, to honor Americans who died in World War I. A park visitor sued in 2001, and a federal judge ruled that the cross violated the First Amendment’s establishment clause because it conveyed “a message of endorsement of religion.”
When the cross was challenged, Congress passed a law that transferred the land under it to the Veterans of Foreign Wars, who would maintain it. The same park visitor challenged the land transfer. A trial court ruled that it was invalid because it was simply an attempt by the government to keep the cross. The United States Court of Appeals for the Ninth Circuit, in San Francisco, agreed.
The Supreme Court reversed that, 5-to-4, in a splintered set of opinions by six separate justices. Justice Anthony Kennedy, in a plurality opinion for himself and two others, said that the district court had erred when it blocked the land transfer because it had failed to properly weigh the factors Congress had to take into account when it passed the law. He directed the lower court to reconsider the question. Because of the way the other justices lined up in their separate opinions, Justice Kennedy’s opinion has the force of law on this point.
Justice Kennedy wrote that the cross was “not merely a reaffirmation of Christian beliefs.” He said, 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.”
A cross is not a generic memorial to Americans who die in battle — something Jewish, Muslim, and atheist soldiers could attest to. Justice John Paul Stevens, in dissent, had it right when he pointed out that it is a uniquely Christian symbol with a “deeply significant meaning for those who adhere to the Christian faith.”
The establishment clause prevents the government from endorsing any particular religion. Congress violated that basic principle in this situation. It should not have been a difficult case.
Editorial, New York Times
Full article: http://www.nytimes.com/2010/04/30/opinion/30fri3.html