Yesterday, the oral arguments in Salazar v. Buono took place in the Supreme Court.
Some background to the case: 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.
The Secular Student Alliance (along with several other members of the Secular Coalition for America) signed onto an Amicus Brief in this case (PDF). We support Mr. Buono.
The man who wrote that brief is Bob Ritter, Legal Coordinator of the Appignani Humanist Legal Center. He notes the importance of this case:
“A ruling either way is likely to have profound implications,” said Ritter. “A ruling in Buono’s favor will likely lead to the removal of some religious symbols on public property throughout America, while a ruling against Buono may close the court house doors to others who seek to challenge Establishment Clause violations.”
The New York Times is on our side 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.
Is the Supreme Court on our side?
It’s no surprise that Justice Antonin Scalia is not. He doesn’t even believe the cross is a symbol of Christianity. This was 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.
Despite this transcript, the case may not even be decided on religious grounds. Rob Boston explains:
… In fact, there was surprisingly little talk about whether the presence of the cross in the middle of a federal preserve amounts to an unconstitutional “establishment” of religion.
Instead, several of the justices veered off into a discussion over a land swap Congress mandated in an effort to keep the cross up. In an effort to save the cross, Congress passed a special law declaring the cross a national memorial and transferring ownership of the land to a private group, the Veterans of Foreign Wars (VFW). There was a lot of talk about how that action affected a court injunction ordering that the cross be removed.
Thus, it’s possible the high court could decide this case on narrow technical grounds and perhaps even kick it back to a lower court.
There’s a chance all of this could be moot, too. Buono could lose the case on standing — similar to Michael Newdow’s “Under God” case — in which case the merits of why the cross should come down (or not) would not be addressed.
(Thanks to everyone for the link!)