October 8, 2009

Salazar v. Buono

Way back in the 1930’s, several World War I veterans suffering from the effects of battlefield exposure to mustard gas, migrated to the desert seeking relief in the dry air. At some point they formed a VFW post. In 1934, Death Valley VFW Post 2284 hired a shade tree welder to construct a simple structure out of three pieces of 4” pipe, fashioning it into the shape of a Latin cross. This fabrication was erected atop a geologic formation in the California desert, known as Sunrise Rock. The VFW championed the now rusty cross, variously described as between four and 12 feet in height, as a memorial to the dead of World War I. Once there was a sign stating as much, but it has long since disappeared.

This was not necessarily a problem at first, as the original construction was on private land. But some years later the land became part of the 1.6 million acre Mojave National Preserve in southeastern California’s San Bernardino County, and therefore part of the National Park Service’s land holdings.

The cross has undergone four changes worthy of mention. #1, it was repeatedly reconstructed and maintained by private individuals. #2, the sign commemorating WW-I veterans is now gone. #3, Congress designated Sunrise Rock a federal preserve in 1994. And #4, although the National Park service allowed the display of the cross to continue, the area was closed to others wishing to erect monuments containing other, non-christian themes. That last one became a problem.

Buono I

The Establishment Clause of the First Amendment to the United States Constitution prohibits the federal government from favoring specific religions, but in 1999 the NPS denied a petition to erect a memorial to Buddhist war dead. Not long afterward, in 2001, self-described practicing Catholic and retired National Park Service employee, Frank Buono, filed suit against the National Park Service [PDF] seeking removal of the cross. While the case was pending the NPS announced the intention to remove the cross. That would have settled the mess, but Congress interfered by passing a bill denying federal funds for the removal of the cross, designating the cross a national memorial, and providing funds for a memorial plaque.

Buono prevailed in district court, and the federal government appealed to the Ninth Circuit. Not unsurprisingly, the court upheld the injunction.

Buono II

Just as in Buono I, Congress attempted an end run. As Buono II was pending, our enlightened lawmakers transferred the land on which the cross sits to the VFW, trading roughly one acre for a nearby five acre parcel. The transfer was pressed through as a rider to a defense appropriations bill. The designation as a national memorial was preserved, and the legislation stipulated that the cross and the land could potentially revert back to the government.

That didn’t fly either. As the Ninth Circuit noted “a reasonable observer, even without knowing whether Sunrise Rock is federally owned, would believe — or at least suspect — that the cross rests on public land.” That did not stop the land exchange, however.

Buono III

Now we have Buono III, in which ACLU attorneys are arguing that the land transfer itself violated the Establishment Clause. The District Court again sided with Buono, writing that “the transfer of the Preserve land . . . is an attempt by the government to evade the permanent injunction enjoining the display of the Latin Cross atop Sunrise Rock.” This decision was upheld and Buono III now sits before SCOTUS.

While the wingnut sphere is ablaze with indignation, room for understanding may be found. The decision of NPS to remove the christian cross and deny religious-oriented memorials would have extinguished the controversy. It was the predominately christian component in Congress, disregarding the consequences of their actions on non-christian U.S. citizens, that fomented the uproar.

The Law of Unintended Consequences

In a joint brief filed in Salazar V. Buono, the Muslim Armed Forces and Veteran Affairs Counsel (yes, there are Muslims serving in the U.S. military) and the Jewish War Veterans of the United States of America observe “by labeling the cross . . .[a] national memorial to veterans of World War I, Salazar ignores and denigrates the service of our non-Christian veterans of that war.” Furthermore, some former military officers appear to be concerned [PDF] that the perception of government promotion of Christianity over other faiths will prove divisive, and will impair recruitment of non-christians.

Decisions, decisions

SCOTUS has now limited itself two choices. The Justices could end the controversy simply by ruling that Buono, the only challenger to the cross, cannot prove direct harm and therefore has no standing. On the surface at least, that seems to be a simple, even mundane point of court procedure, but it could have powerful impact. Such a ruling would imply that opponents of government sponsored religious symbolism anywhere must prove direct harm before being allowed to seek a remedy in the courts.

Alternately the Court could decide this case based on the property transfer question. If allowed, such a decision could affect many other monuments sitting on government property. It could have effect on national cemeteries and national parks, and even the Kennedy Memorial. As the VFW has argued in this case, “… without action by this Court, countless veterans memorials will perish.” Perhaps a bit strong, but indeed there would be effect.

In the end SCOTUS will rule on a case that will define how we will interpret the 1A Establishment Clause in future court cases. Mr. Buono and the ACLU are arguing for fairness, and even the government’s lawyers state that Buono’s case is based upon an “ideological objection that public lands on which crosses are displayed should also be public fora on which other persons may display other symbols.”

Yes, an ideology based in our Constitution… and a belief that what is good for the goose should be good for the gander. Stuffing Christian symbolism down the throats of non-christians seems to be something of which our founders might not approve.



Ted said...

Serious question here:

One pro-memorial argument I've heard is that the cross is not strictly a Christian symbol in Western culture; it's also frequently used as a sign of respect for the dead.

OK, it's a weak argument.

But it does raise an interesting point. Is the issue "blatantly religious symbols" or "symbols that can be interpreted as religious"? If the latter, what happens if a religion comes along that uses an eagle as its icon? Or a Greek column?

Mule Breath said...

Yes, a weak argument. The latin cross as xtian symbolism is something built by the xtians themselves, and attempting to paint it as generic is simply a fraud created with an ulterior purpose.

SCOTUS has previously ruled that the symbolic endorsement question is determined by the perspective of the reasonable observer.
The overt symbolism is of the biblical crucifixion story, and the resurrection of the man around which the myth is constructed. This is universally recognized.

Any attempt by xtians to deconstruct that argument is disingenuous. It is, in fact, quite childish.

Rogue Medic said...

There has been a bunch of copying of the modified version of the exchange between Justice Scalia and Mr. Eliasberg, that appears on Slate. Cross-Eyed - The high court looks again at religious symbols on public lands.

One problem is that the Slate article deletes some of what was said. Another problem is that it adds interpretations that are not supported by anything in the official transcript. Perhaps the reporter was there taking notes, but the official transcript does not match what was printed in Slate. How accurate is the reporter at interpreting the feelings of a couple of lawyers?

The reprinting of this modified version of the transcript has been rather biased.

Here is the relevant section of the pdf of the official transcript. From page 38, line 12 to page 39, line 22 is copied below.

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.

While I do not think that this hides the apparent bias of Justice Scalia, we should be basing our decisions on what actually happened, not on yellow journalism.

It does appear that Justice Scalia is blind to the possibility that members of other religions do not feel that their war dead are honored by a cross.

If members of other religions should feel that their war dead are honored by a cross, which seems to be the point of Justice Scalia, why shouldn't non-Christians feel honored by the use of a cross in other ways that Christians customarily use crosses? If Justice Scalia sees no Constitutional objection to one case, would Justice Scalia see a Constitutional objection to the use of the cross in other cases?

Justice Scalia appears to have no objection to the use of a cross to honor the dead. If the cross honors all religions, when used to honor the dead, why wouldn't the cross honor all religions in other cases?

Perhaps Justice Scalia can establish the cross as the universal symbol of religion and of non-religion. The ultimate First Amendment symbol.

I may follow this up with a post on my blog, but I am rather busy at the moment.