WASHINGTON (BP)–The U.S. Supreme Court has overturned a lower court ruling that rejected a congressional attempt to protect the display of a cross on federal land in California.
Defenders of the cross, which has stood for 75 years as a World War I memorial on a federal preserve in the Mojave Desert, commended the high court’s April 28 decision but said it fell short of a complete victory.
In a 5-4 vote, the justices decided a federal judge was mistaken in ruling that a 2004 federal law — which transferred the property on which the cross stands to a private organization, the Veterans of Foreign Wars (VFW) — violated an injunction that permanently blocked display of the cross. The judge had barred the federal government from completing the land transfer, and the Ninth Circuit Court of Appeals affirmed the judge’s ruling in 2007. The cross has been covered for about eight years — most of that time by a plywood box.
The high court, with Associate Justice Anthony Kennedy writing the opinion, returned the case to the federal court for further consideration in light of Congress’ effort to remedy concerns that display of the cross constitutes a government establishment of religion.
“This is a good decision that should encourage people of faith about being discriminated against in the public square,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “But the penalty you pay for having conservative, strict-constructionist judges is they rule as narrowly as they can.”
It “is unfortunate” the justices returned the case to the lower court, “but at least they upheld the right of the cross to remain there,” Land said.
Jordan Lorence, senior counsel for the Alliance Defense Fund (ADF), told reporters outside the court building, “The decision is favorable as far as it goes, but the Supreme Court didn’t go far enough. The box needs to come off that cross…. [T]he ACLU and its allies should not be allowed to eradicate and demolish religious symbols that acknowledge our religious heritage, acknowledge the sacrifice of our military heroes, based on the fact that one person is offended by what he sees there.”
Lorence called the covering of the cross “an embarrassment. They act like the cross is something radioactive that they have to protect people from.”
The ACLU expressed disappointment in the decision but encouragement that the case is still active.
“We will continue to argue that the land transfer did not remedy the violation of the Establishment Clause,” Peter Eliasberg of the ACLU of Southern California said in a written statement. “The cross is unquestionably a sectarian symbol, and it is wrong for the government to make such a deliberate effort to maintain it as a national memorial.”
The federal court failed to give due consideration to the importance of Congress’ land-transfer law, Kennedy wrote for the court in Salazar v. Buono
“Even if, contrary to the congressional judgment, the land transfer were thought an insufficient accommodation in light of the earlier finding of religious endorsement, it was incumbent upon the District Court to consider less drastic relief than complete invalidation of the land-transfer statue,” Kennedy wrote.
Kennedy, however, did not seem to agree with the lower court’s opinion that the cross violated the ban on government establishment of religion.
“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” he wrote.
“The Constitution does not oblige government to avoid any public acknowledgment of religions’ role in society. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.”
Writing in dissent, Associate Justice John Paul Stevens said Congress’ transfer of the land “will not end the pre-existing government endorsement of the cross.”
The land transfer, plus the erection of signs and fences designating the property’s owner, “would not completely end the government endorsement of this cross, as the land would have been transferred in a manner favoring the cross and the cross would remain designated as a national memorial,” Stevens wrote.
Also dissenting were Associate Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
Joining in Kennedy’s judgment were Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito.
Alito wrote a concurring opinion that went beyond Kennedy’s decision, saying he would uphold the land-transfer law and not return the case to the federal court.
Scalia also wrote a concurring opinion saying Frank Buono, the retired National Park Service employee who challenged the cross, did not have legal standing to sue. Thomas joined Scalia’s concurrence.
In 2001, Buono, who had worked at the Mojave preserve, contended he was offended by the cross’ display on public property on which other types of displays were not permitted. The cross has been described as being between five and eight feet in height.
Congress’ land-transfer law called for a swap of the land on which the cross stands for another piece of privately owned land in the preserve.
In addition to the VFW and ADF, other organizations submitting friend-of-the-court briefs in support of the government included the American Center for Law and Justice, American Legion Department of California, Becket Fund for Religious Liberty, Boy Scouts of America, Christian Legal Society and Liberty Counsel.
Among those supporting Buono with friend-of-the-court briefs were the American Humanist Association, American Jewish Congress, Americans United for Separation of Church and State, Baptist Joint Committee on Religious Liberty, Freedom From Religion Foundation and Jewish War Veterans of the United States.
Tom Strode is the Washington bureau chief for Baptist Press.