Because It’s A Cross (Update)

The Supremes will hear oral argument today in Salazar v. Buono, the Mojave cross case.  In case you weren’t watching, Lyle Denniston at SCOTUSBlog sums it up:


The Mojave National Preserve is a massive tract of land — about 1.6 million acres, or 2,500 square miles — in California’s San Bernardino County.  About ninety percent of it is federally owned.  On top of an outcropping known as “Sunrise Rock,” in a remote site on federal land, there is a Christian cross.  It can be seen from about 100 yards away as one motors along Cima Road.  It is modest in size, no more than eight feet tall.  It, like several earlier versions that preceded it, serves as a memorial to individuals who have died in military service.  The original cross was put up in 1934 by the Veterans of Foreign Wars.

There are a bunch of collateral issues, ranging from Buono, a former assistant Superintendent of the Preserve, lacking standing to a land swap so that the land beneath the cross is owned by the VFW rather than the government.  Assuming, arguendo, that the Court addresses the primary issue and doesn’t punt, it’s your basic Establishment Clause argument.

The New York Times comes out with an editorial that the cross has to go.  No shock there.  But it’s rationale is curious.


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.

There’s nothing intrinsically unappealing about the shape of a cross.  It’s a great shape. A perfectly good shape. But it also happens, under the right conditions and in relative proportions, to symbolize Christianity.  As such, it shouldn’t be in a United States National Preserve.  There are a ton of places where it would look terrific and inspirational, just not there. No biggie.

But why would it be more appropriate for a Christian symbol to perch atop the Sunrise Rock in the Mojave National Preserve if there was a Jewish Star, or a Buddha, nearby?  To the Times, it apparently makes all the difference in the world, providing some sort of religious equivalencies that reduce the establishment impact of the cross.  The argument that they can’t allow one religious symbol without allowing others is made all the time.  It’s a false solution.

The Establishment Clause forbids Congress from making any law respecting an establishment of religion.  This has come to be expressed as the separation between church and state.  It shows no less favoritism to include symbols from two, or ten, religions than just one.  The inclusion of any religious symbol, by definition, favors religion over agnosticism or atheism.  And then there are the multitude of less favored religions, and religion substitutes.

This has nothing to do with office holders having their own personal religious beliefs.  This has to do with the government confusing its secular role with that of religions.  We no more want government telling churches how to run a mass than churches telling government to legislate its moral teachings.  There are an abundance of places where religious symbols belong, and can stand as a beacon of belief.  Just not on government property.  Not if it’s a cross, or a star, or any other religious symbol.

Believe in God all you want.  Dedicate your life to your faith. That’s fine. Just don’t confuse your faith with your government.  The cross in the Mojave National Preserve shouldn’t be there.  Nor should a Jewish Star. Nor should both of them, even with a Buddha next door.  There shouldn’t even be a question, and it’s appalling that we are still arguing about the propriety of religious symbols on public land.  Yet, the Supreme Court finds this worthy of its time. 

The rule should be simple. No religious symbols on public lands.  Having one is wrong. Having ten is ten times as wrong.

Update:  From the WSJ Lawblog, this is from today’s oral argument:



But perhaps the most interesting — and perplexing — exchange occurred between Eliasberg and Justice Scalia. Scalia disputed the premise behind the lawsuit, telling Eliasberg that it was unfair to view the cross merely as a Christian symbol.

“The cross is the most common symbol of the resting place of the dead,” he said. “What would you have them erect? Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?”

Responded Eliasberg: “I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew. So it is the most common symbol to honor Christians.”

“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,” Justice Scalia said. “I think that’s an outrageous conclusion.”
The old “a cross isn’t a religious symbol” gambit.  It’s not Christian. It’s just a cross.

21 thoughts on “Because It’s A Cross (Update)

  1. John R.

    Yeah but Scott, isn’t the total absence of religious content the equivalent of endorsing atheism? An atheist state wouldn’t be one where denials of God’s existence is positively or symbolically affirmed; it would be one in which all references to God were absent, reflecting the official belief that God does not exist. Seems you’re endorsing something no matter what.

    Not that I care that much, but on the other hand I think government pretenses to neutrality usually wind up being pretty dishonest in practice.

  2. David Sugerman

    This is timely, as yesterday, I was on a small Twitter rant (@DavidSug) about a sukkah erected in Portland’s Pioneer Square. The sukkah is a ritual object for the lesser-known Jewish festival of sukkot. It’s a temporary dwelling.

    For those unfamiliar with the northwest, Pioneer Square is often referred to as Portland’s living room. We also get a Christmas tree and a menorah in Pioneer Square in Dec.

    I count myself as a partially observant Jewish guy, and I find the public land religious symbols profoundly disturbing. Take it home. Or to the ashram, church, mosque or synagogue of your choice. Public land religious display is simply endorsement. The new and enlightened multi-cultural pablum doesn’t change that.

    Having said all that, I’m imagining SCOTUS will view this as non-intrusive or not truly an establishment clause problem. Oh sure, the language will be gussied up, and cases will be cited. Still, I’m betting that the cross stands.

  3. Windypundit

    This is where allowing other religious symbols comes in. The idea is not to have the government do it, but for the government to set a policy whereby organizations can put them up. The religious content can never be neutral, but the policy for allowing content can be. For example, the national cemetaries have grave markers for veterans who are Christians, Jews, Muslims, and Wiccans. Athiests too.

  4. SHG

    Grave markers are the only comparison that doesn’t work under any circumstances, since they are by definition a reflection of the religion of the person buried in the grave rather than the government.

  5. Windypundit

    That’s sort of the point. The government shouldn’t promote a religion, but it can allow other people to use government land to express theirs, as long as it does so in a non-discriminatory manner.

    If you don’t like that example, how about nativity scenes in town squares, or religious clubs that make use of the facilities at public schools and universities? I admit I’m not up on the latest rulings, but the general trend has been that government entities can choose to allow religious expression on an all-or-nothing basis. The case in question has a lot of goofy facts, but I think it will be decided along these lines.

  6. SHG

    Now we’re back to the real issue, as your cemetary analogy was way off base. Why allow nativity scenes on public property? Why have any religious display on public property?  Why should there be any connection between government and any religion whatsoever?

    Have a creche in front of your home, your church, your business. But why in the public square?  There should be no nativity scene, no menorah, no Buddha on public property.  Let every single private home have a display of choice, but not government. Why blindly accept the notion that government needs to have anything to do with religion?

    That the case may well be decided wrongly doesn’t change what the right decision should be. Government should have no connection whatsoever with religion. 

  7. Jdog

    Why allow nativity scenes on public property?

    Probably for the same reason — and in the same way — to allow other expressions of faith, opinion, and belief on public property, and make reasonable (yeah, I know) accomodations for the preferences of those who don’t find it sufficient to express theirs privately.

    I’m really, really uncomfortable with it — my strong preference is that religious expression be generally private while political expression be more public — but others float their sacred boats differently.

    Or, often, pretend to. (I’m of the perhaps unkind opinion that many who don’t see how anybody could find anything objectionable about a cross propped up on public land might, perhaps, find themselves more than mildly uncomfortable with the giant statute of Papa Legba, sacred Kali throttling cord, or Big Holy Giant Pile of Linguine a few yards away.)

  8. SHG

    Wrong why. Why people want to put their religious displays on government property is obvious. The “why” I ask is why this is so vitally important, that it’s inadequate to have their own displays, public or private, just not on public property.  The law, and indeed the discussion, skirts the issue.  It’s not about how the courts can frame a rationale to allow religious displays on public property, but why there is any question about it at all.

    Government is secular. It’s a no religion zone. Have all the religion you want, public or private, just do it elsewhere.

  9. Windypundit

    The problem with your way is that we let other kinds of private organizations use public property. Retail stores put up displays on the sidewalk, and restaurants put out tables. Public parks host music events between letting little league teams use the baseball diamonds. Chicago is winding up another summer filled with neighborhood festivals. Would it truly be freedom of religion to allow these secular groups to use the public spaces but refuse access to religious groups?

  10. SHG

    So you’re not comprehending the distinction between civic purposes and religious purposes?  Yes, they are entirely different. That’s why religion gets its very own constitutional amendment.  It’s very different.  

  11. Windypundit

    It’s not about comprehension: I don’t think government functionaries should be in the business of distinguishing between civic purposes and religious purposes. And that consitutional amendment you mentioned also says government can’t prohibit religion. I’m about 95% atheist myself, but I can’t see how refusing access for religious purposes when you grant it for everything else isn’t a prohibition.

    How do you draw that line? Musicians in the park can sing country songs but not hymns? College students can post Eminem lyrics on their dormroom doors but not bible verses? Or is it that a student can post a bible verse on his door, but 10 of them can’t get together to form a club that posts a bible verse in the common room bulletin board, right next to the Bears schedule and the poster of Megan Fox?

  12. SHG

    It is all about comprehension. First, your examples are all over the place, some just wrong (i.e., college students posting bible verses on their door) and others having specific reasons, entirely disconnected from this issue at all (i.e., retail stores renting sidewalk space for displays).

    But trying to stay on the issue, the constitution grants the free exercise of religion, and we can, in our homes, churches and businesses.  Just not on public property.  You can’t get all fuzzy with all the details without confusing multiple unrelated points.  Nor is it about government functionaries being in the business of distinguishing between civic and religious purposes.  Government exists for civic purposes. Religion is of such an entirely preclusive nature, one of the fundamental differentiations in our society that it compelled the government at the outset to raise it to constitutional levels, that it stands alone.

    Little league is a civic function. The kids on the team can be Christian, Jewish and Muslim, and yet it is still civic.  Saying a prayer before a baseball game, however, is not civic, but religious. Say a Christian prayer and it’s preclusive to the others.  Say any prayer and its preclusive to the atheist.  The point is that religion has no place in secular government.  Everybody else can play ball and have a good time.

  13. Shawn McManus

    By the reasoning given here, were the Taliban justified in destroying the Bamyan Buddhas?

    Had those Buddhas been on private property in the U.S. that became public property then became a national park, would they have to be removed / destroyed as well?

  14. Kathleen Casey

    Regarding the update it is not an outrageous conclusion to the survivors of our war dead who were not Christian. Scalia is nuts sometimes.

  15. Jarad Bernstein

    Scalia’s argument reminds me of a certain South Park episode where ‘lower-case t’s’ were burned in local African-Americans’ front yards. The t’s, of course, were not crosses, but stood for “time to leave”.

  16. Bob

    This is a very strange and sensitive issue, I believe religious symbols should be free to be put up anywhere, as long as they are not encouraging conflict in any way. For millions of people these individual symbols for their religions are a sign of love and salvation, you shouldn’t take that away from them.

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