Cross Purposes

By: Michael Kessler

April 28, 2010

The cross in the desert can stay.

Or, more precisely, the federal government can go ahead with a land transfer with a VFW chapter to allow the cross to stay on formerly federal land in the Mojave National Preserve. In a narrow--and technical--decision, the Court decided 5-4 that the land transfer Congress mandated was permissible and the injunction that the lower court had issued was improperly decided. Does it tell us anything about the establishment clause? Not much.

A retired park employee, Frank Buono, had filed suit to ask for removal of the cross from the federal land in the Preserve. The federal court hearing the case "evaluated the primary effect of the cross by asking how it would be viewed by a 'reasonable observer.' Concluding that presence of the cross on federal land conveyed an impression of governmental endorsement of religion," the judge granted an injunction requiring the removal of the cross. After an appeal, the cross was covered in a tarp and then a plywood box, as it has remained until now.

Then things got interesting. Disturbed by the litigation, Congress had already attached to a Defense appropriations bill a designation of the cross as "a national memorial commemorating United States participation in World War I and honoring the American veterans of that war." Then, during the appeals, "Congress passed a statute (land-transfer statute) directing the Secretary of the Interior to transfer to the VFW the Government's interest in the land that had been designated a national memorial...In exchange, the Government was to receive land elsewhere in the preserve from Henry Sandoz," a private citizen who owned land in the preserve.

Buono was back in the trial court to continue the litigation after another appellate ruling in his favor and after the Congressional land transfer statute was enacted. He sought another injunction, this time to stop the land transfer. The case largely revolves around the procedures of this second injunction and whether the court "properly enjoined the Government from implementing the land-transfer statute."

A plurality of justices agreed that the District Court erred. As Justice Kennedy wrote:

The District Court...used an injunction granted for one reason [prior to the Congressional statute for the land-transfer] as the basis for enjoining conduct that was alleged to be objectionable for a different reason.... [It] failed to consider whether, in light of the change in law [the land-transfer] and circumstances effected by the land-transfer statute, the "reasonable observer" standard continued to be the appropriate framework through which to consider the Establishment Clause concerns invoked to justify the requested relief. As a general matter, courts considering Establishment Clause challenges do not inquire into "reasonable observer" perceptions with respect to objects on private land....

According to the Supreme Court, the District Court essentially failed to take this into account a significant change: the congressionally mandated land transfer (which happens all the time for many reasons) placed the cross on private land. The District court ruled by merely assuming that Congress was trying to avoid the injunction, rather than recognize that a whole host of reasons may have motivated the land transfer.

But you may ask: "Wasn't avoiding the injunction precisely what Congress intended? Wasn't their goal to keep the cross in place, and hence keep this Christian symbol in public view, thus violating the establishment clause?"

This, however, is precisely where the District Court assumed wrongly. According to Justice Kennedy, the cross has many meanings and there are many purposes for its presence, the more important of which was to honor those fallen in WWI.

By dismissing Congress's motives as illicit, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage. Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World War I. Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message...Placement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation's fallen soldiers.

Here is a great example of the old "establishment clause shuffle": symbols have many meanings, only some of which are religious while others may be secular and therefore permissible. In this instance, the lower court had focused exclusively on the Christian meaning, while other meanings, like the war memorialization, were more obviously present, and constitutionally acceptable:

[The] District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But 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. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

This is one way to balance between the rock and hard place that everyone found themselves in. Surely the war memorial, which stood for so long and is so needed to mark the fallen in the terrible war, should stay, right? Who cares if Frank Buono is offended? Less callously, Justice Alito framed the delicate balance that Congress carved out:

Congress chose an alternative approach that was designed to eliminate any perception of religious sponsorship stemming from the location of the cross on federally owned land, while at the same time avoiding the disturbing symbolism associated with the destruction of the historic monument. The mechanism that Congress selected is one that is quite common in the West, a "land exchange."

Nor should this move come as a surprise. It is precisely how Justice Burger described the creche that was at the heart of contention in Pawtucket, R.I., in the case Lynch v. Donnelly, 465 U.S. 668 (1984). There, he asserted that the crèche, as an object displayed in the town center, is not really even a significant religious symbol. Burger challenged Justice Brennan's dissenting view that the: "creche as a 're-creation of an event that lies at the heart of Christian faith.' " Rather, on Burger's account, "the creche, like a painting, is passive; admittedly it is a reminder of the origins of Christmas," but, he goes on to tell us, it has a secular purpose because: "the display engenders a friendly community spirit of goodwill in keeping with the season." How could anyone object to its presence in a secular display when, on Burger's account, the nativity is ultimately just a feel-good plastic display, evoking sentimental consumerism?

Remarkable, is it not?

While Justice Kennedy's opinion is far less crass than Justice Burger's in Lynch, both pay a steep price--the religious symbol can stay mostly because it is not really a religious symbol.

Let's review. In Lynch we're told that the symbol of the inception of God's redemptive activity among humans--the nativity--is merely a way to spread goodwill and raise purchases which raises tax revenues. Sure it might be about all this "Jesus saves" theology, but that's not it's only, or primary meaning.

Now along comes the Buono case and Justice Kennedy makes a similar (although much more honorable and defensible) move, that still has the effect of displacing the central meaning of the religious symbol--the cross--away from its central meaning that Christians have held for millenia. The meaning of the symbol at the other end of the Christian narrative, "a Latin cross," Justice Kennedy tells us, "is not merely a reaffirmation of Christian beliefs."

I sympathize with Kennedy here, since instead of Burger's "goodwill = tax revenues," the good faith intent of everyone involved was to honor the dead with a symbol that has long been used to mark the graves of the fallen. I just wish, for the sake of those who hold that symbol to be central to their identities, that it is never treated as "merely" a sign of some beliefs.

Perhaps this may incite us to think long and hard (or contemplatively pray, if you are so inclined) about the involvement of the government in displays of religious symbols, if the only way we can include them is by adding this "not merely" into our descriptions of their meanings.

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Cross Purposes