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Deciding the fate of the Mojave Cross
April 29, 2010 9:09 AM   Subscribe

Yesterday, in a highly split decision with six separate opinions, the United States Supreme Court overturned a Ninth Circuit ruling in Salazar v. Buono. The issue at hand? Whether the location of the Mojave Memorial Cross represented an unconstitutional endorsement of religion. The Ninth Circuit decided that it did, but its ruling has been called into question by the high court on several levels.

First erected in 1934, the Mojave Cross was intended as a tribute to soldiers killed in war. In 1994, the land on which it stood became a federally-owned part of the Mojave National Preserve. Five years later Frank Buono, a former employee of the National Parks Service brought the cross to the attention of the ACLU as a possible form of government endorsement of religion.

The NPS eventually agreed to remove it, until California Representative and Captain Oveur look-alike Jerry Lewis added language to an appropriations bill denying federal funds for the removal of the cross.

The ACLU filed suit in 2001, and in July 2002 a U.S. District Court Judge ruled that the cross did, indeed, represent endorsement of religion. However, Rep. Lewis then arranged a transfer, ceding the acre of land containing the cross to the VFW in exchange for five acres donated elsewhere by a private owner.

The ACLU complained that the land transfer was unconstitutional on establishment grounds, and in 2004 the Ninth Circuit agreed, declaring that the transfer "would leave a little donut hole of land with a cross in the midst of a vast federal preserve".

Yesterday the Supreme Court overturned the Ninth Circuit. Justice Kennedy was joined by Chief Justice Roberts and Justice Alito in hilighting the memorial purpose of the cross: "A Latin cross is not merely a reaffirmation of Christian beliefs... It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies would be compounded if the fallen are forgotten." He defended the land transfer as part of a "framework and policy of accomodation for a symbol that... has complex meaning beyond the expression of religious views."

Meanwhile, Justices Scalia and Thomas also reversed the lower court, but on different grounds. Scalia, writing for that faction, found that Buono did not have standing to challenge the land transfer law. The original injunction, Scalia says, was against display of the cross on federal land. By seeking to challenge the transfer of that land to a private owner, Buono was not requesting "enforcement of the original injunction but expansion of it."

Justices Stevens, Ginsburg, and Sotomayor dissented. Stevens wrote that he "certainly agree[s] that the Nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message." Without judging the constitutional merits of the land transfer itself, he agreed with the District Court that "that the transfer was a means of 'permitting'-indeed, encouraging-the display of the cross."

Justice Breyer, writing separately, posed a simple question: did the land transfer violate the language of the injunction, and "permi[t] the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve"? He backed the District Court in claiming it did.

The case has received some level of attention as the first Establishment Clause case to come before the court under Chief Justice Roberts. The plurality's assertions that a cross did not have primarily Christian connotations has been met with incredulity, both in heated exchanges during the arguments and in analysis after the fact. Nevertheless, Jess Bravin of the Wall Street Journal notes that the court "avoided making any 'sweeping pronouncements' on the line between church and state." She noted Justice Kennedy's hedging language emphasizing the "highly fact-specific nature" of the case, making it "unsuited for announcing categorical rules".

SCOTUSblog has a round-up.
posted by Riki tiki (114 comments total) 7 users marked this as a favorite

 
To think that all that money and effort could have been spent on something worthwhile.
posted by Behemoth at 9:17 AM on April 29, 2010 [3 favorites]


Why do I feel like we've reached the point where our system is like two kids in the back seat, one of them waving their hands around the other's face, "I'm not touching you! I'm not touching you! I'm not touching you!"?
posted by yeloson at 9:24 AM on April 29, 2010 [23 favorites]


Thanks for this great summary, Riki tiki.

'Sweeping pronouncements' or not, this is a disturbing case. I'm worried that we'll see the same 5-4 split on church-state cases for a long while. And even if the ruling is very specific, groups that want to put crosses up in small communities will find it easier to do so because the people that want to oppose them are disheartened about any legal challenge.

That's pretty much what has happened with child-proselytizing Good News Clubs after Good News Club v. Milford.

That ruling was disappointing for church-state separation, but it was fairly specific to the particulars of the Milford group. But Good News Clubs get away with murder now in a lot of areas because schools and parent groups are afraid of getting sued if they try to keep them in the boundaries laid out by Milford.
posted by gurple at 9:25 AM on April 29, 2010 [2 favorites]


what an amazing waste of time. I'm all for the separation of church and state, but, give me a break...

and... what yeloson said... we've become a country of infantile idiots.
posted by HuronBob at 9:28 AM on April 29, 2010 [1 favorite]


For some reason, the NYT won't let me copy this but, but Scalia's "The cross is the most common symbol of the resting place of the dead," strikes me as breathtaking in its ignorance.

I've spent a fair bit of time visiting cemeteries here in England - most if the graves date from the mid-19th to early 20th centuries, and not many of the headstones or memorials have had crosses on them. They have other symbols, some of them very specific to Victorian or Edwardian Church of England symbolism: obelisks and half-draped urns were very popular. There was a memorial to (I think) soldiers killed in the Boer War that was in the shape of an obelisk in the St James park here in Liverpool, which sits at the foot of the Anglican Cathedral.

Tony, you should really get out more.
posted by rtha at 9:29 AM on April 29, 2010 [18 favorites]


She noted Justice Kennedy's hedging language emphasizing the "highly fact-specific nature" of the case, making it "unsuited for announcing categorical rules".

To which I, as a complete layman, think "pull the other one, it's got bells on!"

If this decision isn't latched onto by every would be theocrat in the country I'll be stunned. The theocratic side of the Supreme Court has, quite deliberately I think, opened a gaping hole in the wall between church and state. Now all the local city hall has to do is sell, or donate, a few square meters of its front step to a church and suddenly we have "Constitutional" displays of the Ten Commandments, or creches, or what have you.
posted by sotonohito at 9:33 AM on April 29, 2010 [13 favorites]


Jesus, two loving gay people can't marry but we can spend the SCOTUS' time dealing with something that existed before the govt bought the land. For fuck's sake, this is what gives liberals a bad name.
posted by spicynuts at 9:34 AM on April 29, 2010 [1 favorite]


From the NYTimes link: (Emphasis mine)
Justice John Paul Stevens rejected that view. “The cross is not a universal symbol of sacrifice,” he wrote in a dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. “It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith.”

The disagreement recalled perhaps the most heated exchange of the term, from the argument in the case in October.

Peter J. Eliasberg, a lawyer with the American Civil Liberties Union of Southern California, said many Jewish war veterans would not want to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Antonin Scalia responded that the symbol in the context of a war memorial carried a more general meaning. “The cross is the most common symbol of the resting place of the dead,” he said.

Mr. Eliasberg said, “There is never a cross on the tombstone of a Jew.”

Justice Scalia, who is usually jovial even in disagreement, turned angry. “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,” he said. “I think that’s an outrageous conclusion.”
From here: (Emphasis mine)
Following World War I, a board of officers composed of Assistant Secretary of War J.M. Wainwright, Army Chief of Staff General John J. Pershing and Quartermaster General Harry L. Rogers adopted a new design to be used for all graves except those of veterans of the Civil and Spanish-American Wars.

This stone was of the slab design referred to as "General" type, slightly rounded at the top, of American white marble, 42 inches long, 13 inches wide and four inches thick. The inscription on the front face would include the name of the soldier, his rank, regiment, division, date of death and state from which he came.

For the first time, a religious emblem was adopted for use on government headstones. The religious emblem was authorized for use at this time only on the General type stone. The choice of emblem was limited to the Latin Cross for the Christian faith and the Star of David for the Jewish faith.
Looks to me as if Justice Scalia doesn't know his history. What a shame.
posted by zarq at 9:36 AM on April 29, 2010 [19 favorites]


sotonohito: If this decision isn't latched onto by every would be theocrat in the country I'll be stunned.

Fortunately, whether or not it is latched onto by theorcrats outside the court and those with actual decision making power are very different things. I think it will be just as much a 'call to action' for those of us who do believe that church and state should stay separate, which, given that there's a seat being filled on the Supreme Court, couldn't come at a better time.
posted by MCMikeNamara at 9:37 AM on April 29, 2010


"A Latin cross is not merely a reaffirmation of Christian beliefs... It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies would be compounded if the fallen are forgotten."

Other markers we use for our soldiers.

The fucking cross represents the afterlife we hope our Christian soldiers go to. That is why it is there. It doesn't mean "soldier," it means Christian. That's why Arlington has jews buried under Stars of David.
posted by shmegegge at 9:37 AM on April 29, 2010 [12 favorites]


If you don't think the Christian cross primarily evokes Christianity, then speaking as a Jew, I'd just like to get in my Fuck You before the stampede.
posted by Tomorrowful at 9:39 AM on April 29, 2010 [9 favorites]


Scalia's "The cross is the most common symbol of the resting place of the dead," strikes me as breathtaking in its ignorance.

As are more than a solid majority of the statements that Scalia makes.

Jesus, two loving gay people can't marry but we can spend the SCOTUS' time dealing with something that existed before the govt bought the land. For fuck's sake, this is what gives liberals a bad name.

The fact that two loving gay people can't marry has nothing to do with liberals bringing suits like this (which is what I assume you're upset about). I'm not sure what your point is. The ACLU actively supports and works in favor of LGBT relationships and same-sex marriage.
posted by blucevalo at 9:42 AM on April 29, 2010 [4 favorites]


For fuck's sake, this is what gives liberals a bad name.

I think you mean this is what gives wingnut conservatives like Jerry Lewis a bad name. None of this was a problem before he fought against a simple removal.
posted by shmegegge at 9:42 AM on April 29, 2010 [7 favorites]


The cross, like it or not, has gone beyond Christianity in meaning purely for the utility of its shape, so when you reach over and put your hand into a pile of goo that was your best friend's face, you'll know what to do — as any fearless vampire killer can tell you, you can make a cross rather easily and quickly — take two sticks of unequal length and lash them together at right angles.

In a weird way, the cross has a certain significance because of the simplicity of its shape. That could be how we got to "thousands of small crosses in foreign fields marking the graves of Americans who fell in battles." A half-draped urn just cannot be whipped together that easily.
posted by adipocere at 9:45 AM on April 29, 2010


doesn't mean much, really, unless someone sets it on fire.
posted by kitchenrat at 9:45 AM on April 29, 2010


How about we devise a secular representation that honors the fallen? And not a shitty amalgam of interpreted cross-faith symbols as put together by a committee. Something elegant, simple, and stirring.

The cross is a great symbol because of it's simplicity, and the representation of human form. But that one is taken. The Star of David is pretty simple, and the Star and Crescent is beautiful.

Design contest, anyone? Take care not to borrow too heavily from any one faith!
posted by Xoebe at 9:45 AM on April 29, 2010


The theocratic side of the Supreme Court...

What does "theocratic" mean here?
posted by MarshallPoe at 9:47 AM on April 29, 2010


Design contest, anyone? Take care not to borrow too heavily from any one faith!

Obelisks and other Classical forms usually take this role, unless you're expecting a backlash from the Nile Religion Revivalists.
posted by The Whelk at 9:49 AM on April 29, 2010 [6 favorites]


Jesus, two loving gay people can't marry but we can spend the SCOTUS' time dealing with something that existed before the govt bought the land. For fuck's sake, this is what gives liberals a bad name.
posted by spicynuts


That's not really the way it works. The ACLU can't go "Oh, Supreme Court, I know you were scheduled to handle this Mojave Cross case that spent a decade working its way up to you, but we'd prefer you legalized gay marriage instead." If they could, they probably would. But that's not the way it works.
posted by haveanicesummer at 9:49 AM on April 29, 2010 [7 favorites]


The fact that two loving gay people can't marry has nothing to do with liberals bringing suits like this (which is what I assume you're upset about). I'm not sure what your point is. The ACLU actively supports and works in favor of LGBT relationships and same-sex marriage.

My point is there are bigger fish for the SCOTUS to fry. Look, are you telling me there isn't a single cross that came with ANY other land or property that the feds turned into a national park? Lincoln's home? Jefferson's home? Not a single cross on any property prior to the govt buying it? Are we required to remove all pre-existing edifices? I don't see how not removing them is an 'endorsement' of a religion. Building one after the fact, yes.
posted by spicynuts at 9:51 AM on April 29, 2010 [1 favorite]


There are some references to God on the Lincoln memorial. Better tear it down.
posted by charred husk at 9:51 AM on April 29, 2010 [1 favorite]


I'm torn. I think it's pretty stupid to go 'Oh hey that giant Christian symbol up there... who owns that?' and get back 'The federal government.'

On the other hand, who really fucking cares?
posted by shakespeherian at 9:53 AM on April 29, 2010 [1 favorite]


Jesus, two loving gay people can't marry but we can spend the SCOTUS' time dealing with something that existed before the govt bought the land. For fuck's sake, this is what gives liberals a bad name.

I may be ignorant of the workings of the court but they get to choose what cases they hear...so...they have wasted their own time and moved the "christian country" football a yard closer to the endzone.
posted by zerobyproxy at 9:54 AM on April 29, 2010 [2 favorites]


The waters have to be tested somehow, with a new court makeup. We found out that Sotomayor will at least vote with the church-state-separation crowd sometimes. I'd rather find that out but lose the case with something symbolic like this than with something really important.
posted by gurple at 9:57 AM on April 29, 2010


The cross, like it or not, has gone beyond Christianity in meaning purely for the utility of its shape,

Perhaps. Many religions use symbolic crosses. But let's face it: that does not make a cross a secular symbol, nor an appropriate representation for those of us who follow non-Christian religions.

The Catholic Church has venerated the Cross since the second century. Considering that they tortured and slaughtered Jews and Muslims by the thousands for nearly two millennia while representing themselves with that Cross, it seems a particularly shitty thing to do to declare the cross an appropriate memorial marker for non-Christians.
posted by zarq at 10:01 AM on April 29, 2010 [3 favorites]


There are some references to God on the Lincoln memorial. Better tear it down.

Last time I looked, "God" wasn't the sole purview of Christianity, unlike the symbol of the cross.
posted by briank at 10:03 AM on April 29, 2010 [2 favorites]


My point is there are bigger fish for the SCOTUS to fry.

I must have misunderstood what you were saying. My apologies.

I don't disagree with your point, and I don't have any particular feeling one way or the other about this particular case. I think that haveanicesummer has a point, too, though. Litigants don't get to determine the order in which the SCOTUS decides to hear a case. If Roberts and his cronies think a cross in the middle of the Mojave Desert is more momentous than two gays marrying, that's what gets on the docket first.
posted by blucevalo at 10:07 AM on April 29, 2010 [1 favorite]


It's a shame that by trying to strengthen the temporal and secular reach of their particular religion, or at least by being sympathetic and biased towards those who are, the majority justices have weakened their purported faith. As Stephens notes, "It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith.”

Claiming it as universal dilutes Christianity and Christ.
posted by klangklangston at 10:08 AM on April 29, 2010 [3 favorites]


I'm torn on this - it's not like the government put up this cross. The government bought land on which a cross was standing. The thing has stood there for 75 years, and the only person who seemed to complain about it was a former parks employee? Who else really gives a shit?
posted by antifuse at 10:10 AM on April 29, 2010 [6 favorites]


None of this was a problem before he fought against a simple removal.

I'm (literally) a card-carrying member of the ACLU, and a huge advocate for separation of church and state, and I really think removal is a net loss. This isn't somebody putting the ten commandments in a courthouse - this is a memorial that was placed long before the feds owned this land. There should have been a way to grandfather this in. I would have slept easy at night if it had not been removed.

The Barstow Canyon petroglyphs are arguably religious in nature - should they be sandblasted off?
posted by dirtdirt at 10:13 AM on April 29, 2010 [10 favorites]


I'm pretty sure Scalia had some kind of undetected stroke or chemical exposure or something. That's the only way to explain that guy's complete idiocy, unless he's just slavishly and actively pursuing some kind of agenda dictated to him from the C Street house. What a bastard.
posted by Burhanistan at 10:16 AM on April 29, 2010


briank: "Last time I looked, "God" wasn't the sole purview of Christianity, unlike the symbol of the cross."

"Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh."
Mathhew 18:7, right on the memorial. Seems pretty Christian to me.
posted by charred husk at 10:20 AM on April 29, 2010 [2 favorites]


dirtdirt: this is a memorial that was placed long before the feds owned this land

I don't know if this affects your opinion on the matter, but I neglected to mention in the post that the current cross is not the original cross. The original cross erected in 1934 was wooden, and has since been replaced by one made of metal pipe.

Now as far as I know, it wasn't the National Parks Service that replaced it (which would be pretty blatantly unconstitutional), but it does deflate the argument that this is a historical artifact a bit.
posted by Riki tiki at 10:22 AM on April 29, 2010


Zarq, you and I are in complete agreement on Christian history. I am no fan of that religion, or many others.

What we have here is trademark dilution. The cross has been genericized in the death context. Consider it time-reversed: I'm pretty sure that the Buddhists would like their swastika back, too, even after the Nazis defiled it (as they defiled so many things they touched).

The cross is the Aspirin of death markers, bloody history or no. Personally, I would be fairly happy with the symbol being yanked out, and am not crazy about the slippery way it has been left in, but I am supporting that, yeah, "A Latin cross is not merely an affirmation of Christian beliefs ..." That argument is sound to me. I don't know how much weight to assign it, but they aren't just making things up when that statement comes out.
posted by adipocere at 10:23 AM on April 29, 2010 [1 favorite]


Arguing about whether or not the cross is a non-religious specific death marker or not is a huge red herring. We're talking about a big-ass cross on a mountain in public land. Not really at all the same thing.
posted by Burhanistan at 10:25 AM on April 29, 2010


There are some references to God on the Lincoln memorial. Better tear it down.

also, wasn't Lincoln christian? then it'd be okay for him.
posted by lester's sock puppet at 10:27 AM on April 29, 2010 [1 favorite]


I'm (literally) a card-carrying member of the ACLU, and a huge advocate for separation of church and state, and I really think removal is a net loss. This isn't somebody putting the ten commandments in a courthouse - this is a memorial that was placed long before the feds owned this land. There should have been a way to grandfather this in. I would have slept easy at night if it had not been removed.

The Barstow Canyon petroglyphs are arguably religious in nature - should they be sandblasted off?


I don't know. What I understand of the facts are as follows:

The ACLU and the NPS decided it would be best to take the cross down.
Not a lot of hullaballoo about that decision, EXCEPT
Jerry Lewis decided to be a dick about it.
And now we're in court about it.
The Supreme Court didn't have to accept the case, and could simply have left it to the 9th circuit's decision.
They decided it was important to look at it and overturn the decision, citing stupid ass reasons for it.

In all of this, what I see is one Cali representative being an asshole and the supreme court making a terrible ruling even IF the cross isn't that big a deal. Because the people in charge of the park wanted it taken down. There weren't crazy protests or anything like that. There was just this one asshole representative. And the supreme court decided to support the asshole representative because they apparently think a Crucifix isn't christian enough symbolism as a memorial.

I wouldn't be up in arms if it were there. I am, however, pissed off that the highest court in the land is using obviously specious reasoning to support what could - despite the language of the ruling - prove to be contentious precedent for the further eradication of the boundary between Church and State.
posted by shmegegge at 10:27 AM on April 29, 2010 [5 favorites]


Litigants don't get to determine the order in which the SCOTUS decides to hear a case.

Right, I understand. Here's a calmer assessment of what I'm trying to say. The cross was there before it was federal land. The feds buy the land, it comes with a cross. They don't tear it down. To me that is not 'endorsing'. Some ex-employee of the Park Service goes to the ACLU and says 'OMFG they didn't tear that cross down! It's a violation of separation of church and state'. And instead of the ACLU going, hmmm...the cross was already there...there are probably other parks that came with crosses, what's our net gain here as opposed to spending the same resources on: gay marriage, ten commandments being erected on EXISTING public property, free speech? Instead of saying 'none - this is a trivial case at best' they said oh hell yeah we need to go after this. Really?? So now we have the SCOTUS using up their time because the ACLU decided this is important. I'm saying this is in no way representative of a serious violation of the separation clause.
posted by spicynuts at 10:28 AM on April 29, 2010 [3 favorites]


Last time I looked, "God" wasn't the sole purview of Christianity, unlike the symbol of the cross.

so, your OK with 'Under God' in the Pledge of Allegiance?
posted by Confess, Fletch at 10:28 AM on April 29, 2010


Or what shmegegge just said.
posted by spicynuts at 10:28 AM on April 29, 2010


Seems pretty Christian to me.

Which is kinda funny, given that Joe Cannon, the Speaker of the House at the time of the construction the monument, said, "I'll never let a memorial to Abraham Lincoln be erected in that goddamned swamp."
posted by blucevalo at 10:30 AM on April 29, 2010


Hmm, I wonder if this is the right decision, for the wrong reasons. The stated arguments are obviously garbage, but I can't help but wonder if forced removal of a religious symbol from acquired public land might not be another violation of the separation clause.

The way I understand it, the government can't have an opinion on religion, either for OR against, and removing the cross could certainly be construed as having an opinion against.

Of course, that also leaves a loophole the size of a truck to drive through, having private parties put up a Ten Commandments or a cross, and then buying the land and building a courthouse behind it. But with this decision, we have that loophole anyway.
posted by Malor at 10:34 AM on April 29, 2010


San Diego has almost the exact same problem with a cross here. With similarly stupefying judicial quotes, "The Court finds the [cross] communicates the primarily non-religious messages of military service, death and sacrifice. As such, despite its location on public land, the memorial is Constitutional."

As an atheist I find this whole process embarrassing. If the government is found actually endorsing one religion over another, fine, sue. But this crap is just idiotic.
posted by y6y6y6 at 10:35 AM on April 29, 2010


what we have here is a couple of pieces of metal pipe on a rock in a desert

yeah, that's worth a huge fight over, isn't it?
posted by pyramid termite at 10:36 AM on April 29, 2010


A Latin cross is not merely a reaffirmation of Christian beliefs... It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles

And each and every one of those thousands of small crosses is a reaffirmation of Christian beliefs. Non-Christian Americans who fell in battle can be honored with different markers, like the Star of David that marks the graves of Jewish American soldiers at the Normandy American Cemetery and Memorial.

U.S. Department of Veterans Affairs: Available Emblems of Belief for Placement on Government Headstones and Markers: the first one listed is the Christian cross, which looks a lot like the cross in question.

Personally I prefer the markers at Arlington National Cemetery. Regardless of people's differences in race, religion, rank, or class in life, they're all the same in death, and the markers are all the same from a distance. When you look close you can see an individual's religion, if their family chose to include it.
posted by kirkaracha at 10:37 AM on April 29, 2010 [3 favorites]


shmegegge: "Other markers we use for our soldiers."

Wow - atom symbol with an A for atheists - definitely appropriate but kind of loaded.
posted by idiopath at 10:37 AM on April 29, 2010


Riki tiki, were you at the court this morning? I thought I saw you on Capitol Hill--did we have another almost-mini-meetup?
posted by MrMoonPie at 10:40 AM on April 29, 2010


spicynuts: "So now we have the SCOTUS using up their time because the ACLU decided this is important."

No. The supreme court decided to hear this case and used it to move legal precedent toward a more liberal interpretation of "separation of church and state". They wanted to hear this because they knew they could weaken the separation by ruling on it. It was a tactical mistake by the ACLU to be sure, but believe me the court is not wasting their time here, they are glad to be able to push that line.
posted by idiopath at 10:42 AM on April 29, 2010 [2 favorites]


"The way I understand it, the government can't have an opinion on religion, either for OR against, and removing the cross could certainly be construed as having an opinion against."

Well, no. If you remember your constitution, the prohibition is against the positive acts of establishment and against the negative acts of constraining expression. But since this is public land (or was), the much stronger interpretation is that having this there explicitly endorses, or "establishes," a religion than it does constrain the expression (especially because, and actual lawyers and scholars correct me if I'm wrong), the expression clause is generally held to be open to more constraint than the establishment (in part because the establishment part is barring positive action, which is generally simpler). The expression part is more constrained because it's got to balance all possible faiths and none, and because it's already secondary to the prohibition on the establishment of a primary or dominant faith (or faith at all).
posted by klangklangston at 10:44 AM on April 29, 2010 [1 favorite]


Nope, that wasn't me this time, MrMoonPie.

I do think DC needs another actual-macro-meetup though, I'd bring it up in MeTa but I basically can't do anything for the whole month of May and beginning of June.
posted by Riki tiki at 10:48 AM on April 29, 2010


No. The supreme court decided to hear this case and used it to move legal precedent toward a more liberal interpretation of "separation of church and state". They wanted to hear this because they knew they could weaken the separation by ruling on it. It was a tactical mistake by the ACLU to be sure, but believe me the court is not wasting their time here, they are glad to be able to push that line.

We are saying the same thing just in different ways. Boiled down, I should have just said "Boo on the ACLU for wasting their time on this and in the process letting the SCOTUS use it for shady purposes"
posted by spicynuts at 10:51 AM on April 29, 2010 [1 favorite]


The original cross erected in 1934 was wooden, and has since been replaced by one made of metal pipe.

Fascinating. Do you know the timeline? Was it replaced before or after Federal acquisition?

It doesn't change my opinion, though. I'm still torn. I think this is a shit ruling, and that at this point the thing should go, because it has been escalated and bet on so heavily, and so has become something other than what it was. But I think there should be room for what it was. But what it was is gone, and what it is should go. Ugh.
posted by dirtdirt at 10:56 AM on April 29, 2010 [1 favorite]


Uh, I don't mean physically was and is. I mean symbolically.
posted by dirtdirt at 10:57 AM on April 29, 2010


I'd be interested to see if any of the "a cross can be a general symbol!" folks come from an actively non-Christian (i.e. not counting 'lapsed Christian') family background. Because I'd be surprised if so.
posted by threeants at 10:58 AM on April 29, 2010 [2 favorites]


For some reason, the NYT won't let me copy this but, but Scalia's "The cross is the most common symbol of the resting place of the dead," strikes me as breathtaking in its ignorance.

scalia couldn't find his old puckered asshole with a marine recon team and eight eagle scouts so
posted by Optimus Chyme at 10:59 AM on April 29, 2010 [1 favorite]


I wonder if we'll hear the same arguments in FFRF v. Obama and Dobson that "prayer" as used in the law authorizing the National Day of Payer is now neutral and non-sectarian.
posted by KirkJobSluder at 11:01 AM on April 29, 2010


scalia couldn't find his old puckered asshole with a marine recon team and eight eagle scouts so

I'm pretty sure the Boy Scouts are against that sort of thing these days.
posted by zarq at 11:01 AM on April 29, 2010 [1 favorite]


What we have here is trademark dilution. The cross has been genericized in the death context. Consider it time-reversed: I'm pretty sure that the Buddhists would like their swastika back, too, even after the Nazis defiled it (as they defiled so many things they touched).

The cross is the Aspirin of death markers, bloody history or no. Personally, I would be fairly happy with the symbol being yanked out, and am not crazy about the slippery way it has been left in, but I am supporting that, yeah, "A Latin cross is not merely an affirmation of Christian beliefs ..." That argument is sound to me. I don't know how much weight to assign it, but they aren't just making things up when that statement comes out.


Hrm. Are you saying that after so many generations of use by them that it's now quintessentially a Latino symbol, rather than a Christian one? If so then I don't know enough about it to knowledgeably agree or disagree, to be honest. But I do know a few Ladino speakers who might disagree....
posted by zarq at 11:08 AM on April 29, 2010 [1 favorite]


Oh yay! An establishment clause case! Hasn't been one in a while (has there? if I missed it tell me! they are my favorite). I have only read through half of Thomas and Scalia's bit.

Man, sometimes I forget that the Supreme Court is packed with lawyers, then I read stuff like this:
To begin with, the predicate for any injury he might assert—that the VFW, after taking possession of the land, will continue to display the cross—is at this stage merely speculative.3 Nothing in the statutescompels the VFW (or any future proprietor) to keep it up. The land reverts back to the Government only if “theconveyed property is no longer being maintained as a war memorial,” Pub. L. 108–87, §8121(e), 117 Stat. 1100, which does not depend on whether the cross remains.4
Technically it's true! Oh, I love it. And then there's this catty bit from Alito:
Finally, I reject JUSTICE STEVENS’ suggestion that theenactment of the land-transfer law was motivated by anillicit purpose. Id. at 24. I would not be “so dismissive of Congress.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 70) (STEVENS, J., concurring in part and dissenting in part).

OH SNAP JUSTICE STEVENS WHO'S DISMISSIVE OF CONGRESS NOW!

I miss O'Connor, she would've written something awesome, as it is, this is a mess that seems to come down to: "Don't use this as a precedent, we are deciding this way because it would be enormously unpopular to decide otherwise". The most obvious allusion to this motive:
The demolition of this venerable if unsophisticated,monument would also have been interpreted by some as an arresting symbol of a Government that is not neutral but hostile on matters of religion and is bent on eliminating from all public places and symbols any trace of our country’s religious heritage. Cf. Van Orden v. Perry, 545 U. S. 677, 704 (2005) (BREYER, J., concurring in judgment)
posted by internet fraud detective squad, station number 9 at 11:16 AM on April 29, 2010


I should clarify: my original thought was that this was an irritating and wrong-headed ruling.

My thought now is that it is actually a good ruling, although they went nuts and said a bunch of things they didn't have to say that make them look stupid.

The basic ruling is right. I mean, c'mon:
At oral argument, respondent’s counsel stated that it“likely would be consistent with the injunction” for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them,with the VFW immediately raising the cross again. Tr. of Oral Arg. 44. I do not see how it can make a difference for the Government to skip that empty ritual and do what Congress told it to do—sell the land with the cross on it. “The Constitution deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).
posted by internet fraud detective squad, station number 9 at 11:18 AM on April 29, 2010 [1 favorite]


My thought now is that it is actually a good ruling, although they went nuts and said a bunch of things they didn't have to say that make them look stupid.

Unfortunately the stupid things don't exist in a vacuum. They can also be used as precedent in future rulings and legislation.
posted by zarq at 11:21 AM on April 29, 2010


adipocere: "What we have here is trademark dilution. The cross has been genericized in the death context."

No it hasn't, not in the way you're implying. If I died today my partner would certainly not use a cross to memorialize me. Nor would I use a cross to memorialize my Jewish father. He would flip the fuck out and rightfully so. It's not generic.
posted by internet fraud detective squad, station number 9 at 11:28 AM on April 29, 2010


Justice Scalia, who is usually jovial even in disagreement, turned angry. “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,” he said. “I think that’s an outrageous conclusion.”

So... is Scalia disingenuous or kind of an idiot?
posted by lullaby at 11:30 AM on April 29, 2010


as any fearless vampire killer can tell you, you can make a cross rather easily and quickly — take two sticks of unequal length and lash them together at right angles.

Depending on your targeted vampire, this only works for you if you actually have sincere belief in the cross. Vampires, unlike Justice Scalia, reject the universality argument.
posted by fairytale of los angeles at 11:31 AM on April 29, 2010 [4 favorites]


He's a defensive jerk who lack empathy for non-Christians and many others who disagree with him.
posted by internet fraud detective squad, station number 9 at 11:31 AM on April 29, 2010


(Scalia, not vampires)
posted by internet fraud detective squad, station number 9 at 11:31 AM on April 29, 2010 [7 favorites]


Hrm. Are you saying that after so many generations of use by them that it's now quintessentially a Latino symbol, rather than a Christian one? If so then I don't know enough about it to knowledgeably agree or disagree, to be honest. But I do know a few Ladino speakers who might disagree....

It's called the Latin cross because it's particularly popular in the heraldry and symbolism of the Roman Catholic Church and its post-Reformation schisms, in contrast to the Greek, Orthodox, and Coptic crosses (or the St. Peter's and St. Andrew's crosses.) Not Latin in the sense of being associated with Spain, Portugal, and their former colonial influences (the contemporary definition of Latino.)
posted by KirkJobSluder at 11:35 AM on April 29, 2010


What we have here is trademark dilution. The cross has been genericized in the death context.

I do think there's a degree of truth to this, though. When the characters on LOST use crosses in their graveyard on the island, it doesn't seem to imply that they're Christians.
posted by shakespeherian at 11:35 AM on April 29, 2010 [1 favorite]


Although it's still a fairly silly argument.
posted by KirkJobSluder at 11:39 AM on April 29, 2010


I actually think you're mostly correct on that point, station 9. I think the key distinction is that all of the justices seemed to be looking at the land transfer only insofar as it might have been a violation of the injunction, and then separately considering whether the injunction was consistent with the first amendment.

I gathered that there was a procedural reason why they weren't looking at the land transfer itself through the establishment clause lens, but that seems to be a violation on its own merits. The land transfer was a government action taken specifically to facilitate display of a religious symbol. I think the government doing things to make certain religions' jobs easier is simply a passive-aggressive version of endorsing those religions.

In other words, transferring the land to a private owner, cross or no cross, solves the original establishment violation. But transferring it specifically in order to protect the display of the cross creates an entirely new establishment violation, one that the court didn't analyze.

Since the case has been remanded to the lower court, maybe they'll reframe it in those terms and send it back up to the SCOTUS. It'd be interesting to see if and how the logic would change if that were to happen. How 'bout it, constitutional law folks? Is that even a vague possibility?
posted by Riki tiki at 11:40 AM on April 29, 2010 [1 favorite]


If Sayid died on the island (I don't pay attention) would they have used a cross to commemorate him? If so I would have been rather puzzled.

Anyway, if we want to decide whether the cross is generic, we should be asking people who are not Christian and listening to what they say about it. It's not really for Christians to decide.
posted by internet fraud detective squad, station number 9 at 11:42 AM on April 29, 2010


lullaby: So... is Scalia disingenuous or kind of an idiot?

What's that phrase on the tip of my tongue....argh... oh yeah, "mutually exclusive"...

Yeah, that's it... or in this case, "not necessarily mutually exclusive."

Personally, I do think that the cross has been, in some instances, diluted or distanced from its original meaning. In fact, surely, when it serves their purpose, certain fundamentalists say it's meaning has been diluted. (See also "X-Mas versus Christmas" arguments)

But also, in my opinion, a dissent that matters not to the Supreme Court (or probably anyone), the problem is that the distance isn't yet far enough to be relevant to the standard Scalia is trying to argue.
posted by MCMikeNamara at 11:45 AM on April 29, 2010


Congrats to Scalia for getting people to argue whether or not the cross is a generic burial marker or not and totally forgetting that the case was about a gigantic cross on a mountain.
posted by Burhanistan at 11:47 AM on April 29, 2010


Riki tiki: "The land transfer was a government action taken specifically to facilitate display of a religious symbol. I think the government doing things to make certain religions' jobs easier is simply a passive-aggressive version of endorsing those religions."

The argument (which I somewhat agree with) is that it's primarily a memorial, and the government's intention is to preserve the memorial, not specifically the cross. Intent matters in establishment clause cases. This is a good thing. For one, it keeps legislators from writing laws that are technically neutral while promoting them with the obvious motive of furthering Christianity.

The notion that intent matters will keep people from privatizing lands in front of courthouses so they can put Christian statutes on them.
It is a good thing overall to allow courts to think about intent.

Oh man, now I have to pull out all my old papers on the supreme court in education because I am half talking out of my ass without any citations...
posted by internet fraud detective squad, station number 9 at 11:49 AM on April 29, 2010


scalia couldn't find his old puckered asshole with a marine recon team and eight eagle scouts so
Those guys would qualify for Hazardous Booty Pay.

posted by kirkaracha at 11:50 AM on April 29, 2010


I'm usually a strict separationist on these issues, but one of the mandates of the Department of the Interior is historic preservation. It's a structure of historic interest that predates the establishment of the preserve. I think the argument that its existence on public land constitutes de facto religious establishment is a weak one.
posted by KirkJobSluder at 11:50 AM on April 29, 2010 [1 favorite]


We're talking about a big-ass cross on a mountain in public land.

We're talking about an 8-foot high assemblage of pipes on top of a big rock.
posted by Kirth Gerson at 11:57 AM on April 29, 2010 [1 favorite]


The notion that intent matters will keep people from privatizing lands in front of courthouses so they can put Christian statutes on them.

We'll see. I, for one, doubt that very much. I think that the intent of the Court was specifically to open a loophole in displays of religious symbols on public property, and I think this loophole will be maximally exploited.

Pretty much every year there's some would be theocrat who just can't stand the notion of not erecting a cross, or a creche, on public land around Christmas. The ACLU gets to put on its Grench costume and object and all the good Christians and "Sensible Liberals" condemn the evil ACLU for (A) being evil, or (B) wasting time and resources. But this year they'll get the city to sell them, or rent them, the land in front of the courthouse and thanks to the actions by the theocrat wing of the court they'll win. And we're one step closer to being a Christian version of Saudi Arabia...
posted by sotonohito at 12:23 PM on April 29, 2010 [1 favorite]


The ACLU doesn't think that will happen.

This just isn't a case to set a broad precedent and in fact the court was careful not to do so, which I think is (sorta) a good sign.
[...] Peter Eliasberg of the ACLU disagreed, contending that what might be permissible for a monument in place for 70 years would not be for a relatively new monument.

"I don't see this as any type of broad pronouncement," Eliasberg said.

University of Michigan law professor Douglas Laycock, who filed a brief urging the court to uphold the order to dismantle the cross, noted that Wednesday's ruling did not resolve the big question waiting to be answered: whether the government can itself place a religious symbol on government land.

"The real issue, whether it's crosses or any other kind of display, is postponed until the next case," said Laycock, adding that he is "not optimistic about how the next case is going to come out."
posted by internet fraud detective squad, station number 9 at 12:35 PM on April 29, 2010


I think that the intent of the Court was specifically to open a loophole in displays of religious symbols on public property, and I think this loophole will be maximally exploited.

The religious symbols are one thing, I'm especially -not- looking forward to, "Immigrant go home!" signs being placed on "privately owned" square footage in front of, or in, public buildings.
posted by yeloson at 12:35 PM on April 29, 2010


The argument (which I somewhat agree with) is that it's primarily a memorial, and the government's intention is to preserve the memorial, not specifically the cross.

I see what you're saying there, but the nature of this memorial is overwhelmingly religious in nature, in contrast to a few crosses here and there in the architecture of Monticello or something.

Now obviously some of the Justices disagree that it's overwhelmingly religious. I don't buy their argument. The Latin cross only seems to be a standard symbol for the dead in this country because of the ubiquity of Christians who see it as a religious symbol honoring the religious significance of death in Christian doctrines. To ignore that history in order to argue that it's a secular symbol is simply begging the question.

I agree that intent should matter in establishment cases, so far as the intent is reasonably clear. It's reasonably clear that laws against peyote weren't aimed specifically at preventing exercise of Native American religions (although I thought that law was stupid for other reasons). Intent mattered.

But in the context of the land transfer? Intent isn't clear at all. I think it's entirely possible -- even likely -- that Rep. Lewis pursued this action in order to protect the religious message of the cross (whether for his own beliefs or for those of his constituency). Whatever the original intent of the memorial, I find it very difficult to believe that there's no religious motivation behind its defense.
posted by Riki tiki at 12:40 PM on April 29, 2010


So... is Scalia disingenuous or kind of an idiot?

Both?
posted by blucevalo at 12:47 PM on April 29, 2010 [1 favorite]


Riki tiki: I see what you're saying there, but the nature of this memorial is overwhelmingly religious in nature, in contrast to a few crosses here and there in the architecture of Monticello or something.

Even if it were overwhelmingly religious in nature. I don't feel that the interests of separation of Church and State are best served by bulldozing historic monuments that become public property. It's not an argument we would care to make in regards to the religious sites of the First Nations which the Federal Government claims it holds in their trust.
posted by KirkJobSluder at 12:48 PM on April 29, 2010


KirkJobSluder: I don't feel that the interests of separation of Church and State are best served by bulldozing historic monuments that become public property.

That's a very one-sided framing. Another way of seeing it is "I don't feel that the interests of separation of Church and State are best served by displaying a Latin cross on public property." It's a murky issue and I'm not saying there are any easy answers.

My personal view is this, then: the argument for taking it down is mostly a constitutional conflict on the basis of a law that was obviously, clearly, not intended to affect religious practice: the formation of the Mojave National Preserve in the first place. That land happened to have a religious symbol on it but that was by no means the reason it was chosen to be part of a National Park.

The argument for leaving it up, on the other hand, relies on laws that are specifically targeted at protecting a religious symbol... or at best, targeted at protecting either a religious symbol or a war memorial consisting entirely of that symbol -- with no way to determine which is the more likely intention.

Based on that analysis, the constitutional hazard of the latter vastly outweighs the constitutional hazard of the former. Removing the cross is much more consistent with the first amendment than protecting it. Justice Tiki, dissenting.
posted by Riki tiki at 1:17 PM on April 29, 2010


My point is there are bigger fish for the SCOTUS to fry.

No, not really, there aren't. As frivolous as many may argue that this case is (and how much do you want to bet that the ones harumphing about it tend towards christian and conservative?) it falls pretty damn firmly right into the boundaries of the First Amendment, which is exactly what the Supreme Court is supposed to be guarding.

A cross is a Christian symbol, period. There is absolutely no rational argument to the contrary. I think it's pretty safe to presume that no Jew, Muslim, Buddhist or Atheist on the planet would want a cross erected in their honor, unless it was just to be ironic. Thus for a cross to be erected or maintained on federal lands as a memorial is absolutely a violation of the First Amendment. There's no way around that. This is another chink taken out of the wall erected by the founding fathers between church and state. It's an awful and dangerous precedent, and it's frankly un-American and unpatriotic to argue against taking it down. The people that want this country turned into a Christian nation are just drooling and champing at the bit at these sorts of decisions. This is what they're pushing for, this is their agenda, a slow wearing away of those parts of the constitution that they deem to be against their interests.

With this decision, yhe SCOTUS did tremendous damage to the constitution and to the founding fathers' vision for this country, and they should be ashamed of themselves.
posted by Aversion Therapy at 1:40 PM on April 29, 2010


Riki tiki: That's a very one-sided framing.

No it's not. In most cases when governments take land of more than a handful of acres for the public use, it's likely to include cemeteries, churches, monuments, and sites of historic and archeological interest. The government is in no way obligated to erase features that predate acquisition for fear that they might constitute endorsement.

My personal view is this, then: the argument for taking it down is mostly a constitutional conflict on the basis of a law that was obviously, clearly, not intended to affect religious practice: the formation of the Mojave National Preserve in the first place. That land happened to have a religious symbol on it but that was by no means the reason it was chosen to be part of a National Park.

I don't see how this is a constitutional conflict or an argument for taking it down. If it does not affect religious practice, then there is no reason to take it down. If the land just happens to have a religious symbol, then it's not establishment and there is no reason to take it down. There is absolutely no constitutional hazard here.

The argument for leaving it up, on the other hand, relies on laws that are specifically targeted at protecting a religious symbol... or at best, targeted at protecting either a religious symbol or a war memorial consisting entirely of that symbol -- with no way to determine which is the more likely intention.

Well, that's the trickier subject because rather than just declare it a historic site worthy of preservation, what happened was a mess of tricky legal moves to privatize it. That particular legal strategy is certainly suspect. But on the other hand, simply declaring it a historic monument that just happens to be included by a National Preserve would have been entirely legal and posed no Constitutional hazard.
posted by KirkJobSluder at 1:44 PM on April 29, 2010


Wouldn't it be cool if the church or whatever that bought the few square feet front of your local city hall or courthouse went broke or dissolved. Then some innocuous sounding group bought it from them and plastered satanic, pagan, or idk maybe some sort of radical political symbols or slogans there. I'll bet Scalia would, as a matter of principle, be just as inclined to support a hammer and sickle on "private property" as a cross or the ten commandments.
A cross made out of metal pipes on a rock in the desert is pretty hard for me to get worked up about but the hypocrisy and deceitfulness of these justices is infuriating.
posted by Tashtego at 1:52 PM on April 29, 2010


Aversion Therapy: Thus for a cross to be erected or maintained on federal lands as a memorial is absolutely a violation of the First Amendment. There's no way around that. This is another chink taken out of the wall erected by the founding fathers between church and state. It's an awful and dangerous precedent, and it's frankly un-American and unpatriotic to argue against taking it down.

The First Amendment does not obligate the government to bulldoze historic sites, deface them to eliminate iconography, or to burn religious texts in government-funded libraries. Such attempts at defacing and rewriting history were exactly what the First Amendment was written to guard against, and it's blatantly un-American and unpatriotic to argue otherwise.
posted by KirkJobSluder at 1:52 PM on April 29, 2010 [1 favorite]


Which, digging into it, it doesn't qualify as a historic site because it's been taken down and replaced multiple times over the last 80 years. Still, the principle remains that the government is under no obligation to deface historic features on national lands just because they happen to be religious.
posted by KirkJobSluder at 2:15 PM on April 29, 2010


KirkJobSluder: I'm not sure if you're being deliberately obtuse, or just playing devil's advocate, but that's frankly a load of balls. If, to extend your argument, a federal government owned library carried christian texts and only christian texts, and refused to accept to hold texts of any other religion, the First Amendment would absolutely mandate that the practice cease. IF the feds were to allow other religious icons to be put up along side it, and perhaps to allow atheists to put up their own memorial, then it wouldnt be a problem. But they're not, they're leaving a cross, and trying to claim that's it's not really christian, and that's just nonsense.
posted by Aversion Therapy at 2:17 PM on April 29, 2010 [1 favorite]


I suppose Rep. Lewis can't imagine that there might have been atheists who proudly died in WWI for the sake of their country who would have been offended by his cross? (Of course he can't.)

It's maybe worth noting also that in 1999 the Park Service dismantled a Buddhist stupa that had been erected in this same park.
posted by aught at 2:22 PM on April 29, 2010 [5 favorites]


aught: It's maybe worth noting also that in 1999 the Park Service dismantled a Buddhist stupa that had been erected in this same park.

Exactly, that's the point. They cannot reasonably claim that this is non-religious or non-christian. when non-christian symbolism has been specifically and purposefully excluded.
posted by Aversion Therapy at 2:30 PM on April 29, 2010


Aversion Therapy: I'm not being obtuse at all, I'm seeing your argument as the anti-American and anti-intellectual twaddle it is, a position that has more in common with the Taliban's destruction of the Buddhas of Bamyan than anything constitutional.

If, to extend your argument, a federal government owned library carried christian texts and only christian texts, and refused to accept to hold texts of any other religion, the First Amendment would absolutely mandate that the practice cease.

We're not talking about such a case. We are talking about whether governments have violated the First Amendment should they preserve religious and historic structures on land purchased for other uses. You have argued that failing to destroy such structures is establishment. I think that concept is ludicrous.

IF the feds were to allow other religious icons to be put up along side it, and perhaps to allow atheists to put up their own memorial, then it wouldnt be a problem.

Which is a ludicrous proposition. Preservation of historic sites shouldn't depend on the creation of ahistorical monuments around them. Of course, since this particular cross has been replaced multiple times, it's a moot point for this case. But it's not a moot point in regards to other historic sites and monuments of interest.

aught: I suppose Rep. Lewis can't imagine that there might have been atheists who proudly died in WWI for the sake of their country who would have been offended by his cross?

That's a side issue which doesn't particularly impact whether a given monument should or should not be preserved.

It's maybe worth noting also that in 1999 the Park Service dismantled a Buddhist stupa that had been erected in this same park.

It also doesn't help that the cross is only a year older. This particular cross should be taken down because it has no historic value. Arguing that all such monuments should be torn down is a completely different matter.

Aversion Therapy: Exactly, that's the point. They cannot reasonably claim that this is non-religious or non-christian. when non-christian symbolism has been specifically and purposefully excluded.

In this case, no. In other cases the preservation of religious monuments can be argued entirely on the grounds of historic value without concern for the particular religious content of the structure.
posted by KirkJobSluder at 3:03 PM on April 29, 2010


Something can be old without being historic. Actual historic sites should be preserved even if they contain religious elements, but age alone does not make something historic (unless it is really old, and not just ~100 years kinda old).
posted by Pyry at 3:16 PM on April 29, 2010


Aversion Therapy: Of course to "extend" and argument you have to address it to start with, something that you failed to do. But to remind you your argument is:

Thus for a cross to be erected or maintained on federal lands as a memorial is absolutely a violation of the First Amendment. There's no way around that.

This would require bulldozing and defacing all religious iconography and sites on public lands. Which you immediately contradict with:

IF the feds were to allow other religious icons to be put up along side it, and perhaps to allow atheists to put up their own memorial, then it wouldnt be a problem.

So the question properly becomes, under what conditions is it not a violation of the First Amendment to maintain and preserve religious monuments and icons?
posted by KirkJobSluder at 3:16 PM on April 29, 2010


Pyry: Something can be old without being historic.

True, but in this case, the criteria is 50+ years so there is no reason to consider the historic relevance criterion.
posted by KirkJobSluder at 3:19 PM on April 29, 2010


And aww hell.

If, to extend your argument, a federal government owned library carried christian texts and only christian texts, and refused to accept to hold texts of any other religion, the First Amendment would absolutely mandate that the practice cease.

This depends entirely on the collection in question. An archival library devoted to the history of a New England town or a Spanish Mission settlement may certainly be dominated by Church records, and it's uncertain how slipping in a token copy of The God Delusion would further the historic mission of that collection.
posted by KirkJobSluder at 3:58 PM on April 29, 2010


The cross was there before it was federal land.

I'm not sure why that's repeatedly raised as important in comments above, but it is wrong: The site was federal public land when the cross was erected, without authorization, in 1934, and remained public land during the various re-erections and transformations of the cross thereafter. It was never owned privately until 2003, when the federal government conveyed it to a VFW post in a land swap that plaintiffs argued was itself a violation of the Establishment Clause.
posted by gum at 4:48 PM on April 29, 2010 [1 favorite]


I think it's pretty safe to presume that no Jew, Muslim, Buddhist or Atheist on the planet would want a cross erected in their honor, unless it was just to be ironic.

And, for a fact, the Department of Veterans Affairs allows pentagrams to be put on the headstones of Wiccan servicemen and women. As a result, the list of officially approved symbols now numbers 39.

And then there was the Natiional Guardsman who changed his name to Optimus Prime. Will he get a Transformer headstone ? That would cool. Maybe it could morph from Star of David to Cross to Star and Crescent to Pentagram to Elvis to Dharmachakra and back.
posted by y2karl at 6:31 PM on April 29, 2010 [1 favorite]


A memorial to fallen soldiers is not a specific endorsement of any religion, no matter what shape it is.

Oh, why can't there just be some perspective/wriggle-room in American constitutional politics? Parchment/paper (or whatever the hell it was written on) is not stone. A cross honouring the dead is not a state-school teacher lecturing from the bible nor a judge ruling that a parent is unfit because they are not Christian, nor a requirement to take communion in the Anglican Church to be allowed to serve in public office (aka the Test Act, which is the specific issue that clause of the constitution was meant to prevent). It's not a threat to minority religions.
posted by jb at 9:00 PM on April 29, 2010


As a result, the list of officially approved symbols now numbers 39.

This whole thread I was wondering if they offered a headstone marker with a depiction of an atom. They do, #16. FSM, however, is absent.
posted by clearly at 12:16 AM on April 30, 2010


This thread is a lesson in how peoples' preconceptions color their apprehension of the facts, from the 'gigantic' cross that is actually 8 feet high, to the monument that was put up on land that later became Federally owned - except that it already was Federally owned.

Not that I have never made erroneous statements because I didn't fact-check my ideas about reality, but when I did fail to do that and was corrected, it reminded me that the checking is worth doing.
posted by Kirth Gerson at 4:23 AM on April 30, 2010


It's not a threat to minority religions.

I might be a little more likely to believe this if there weren't countless people with crosses around their necks busily traveling the world trying to talk people into giving up the religion they were raised with and practicing Christianity instead.
posted by aught at 2:14 PM on May 7, 2010


I wonder if the ruling would have been the same if it was a star of david, or a Wiccan pentagram as opposed to a christian symbol?
posted by Krapulous at 10:08 PM on May 7, 2010


And now... Mojave War Memorial Cross Stolen.
posted by lullaby at 9:53 AM on May 11, 2010


Fascinating development... I don't justify what the thieves did, but it creates a particular thought experiment. If the VFW puts up a new cross, then any claim to preservation of a historic landmark is largely undermined. What we'll have is just that "donut hole of land" ceded to a private owner in order to erect, not preserve, a religious monument -- assuming you don't buy the conservative justices' "the Latin cross is not necessarily a religious symbol" argument.

So based on that precedent, it would be okay for a courthouse to cede a 10'x10' square in front of the entrance to a church to put up a ten commandments monument, right?

It's funny how removing the loaded issue of the existing cross and its history makes it a bit clearer what a poor decision this was on the SCOTUS's part.
posted by Riki tiki at 10:33 AM on May 11, 2010 [1 favorite]


I wonder if the ruling would have been the same if it was a star of david, or a Wiccan pentagram as opposed to a christian symbol?

No need to wonder. As noted in the thread above, a Buddhist stupa (a kind of shrine) that had also been on land taken over by this exact same park was removed by the park service. I would expect the same treatment of any other non-Christian religious symbol.
posted by aught at 12:03 PM on May 11, 2010 [1 favorite]


My non-Christian faith is seriously not threatened by a cross.

As for the theives -- they are just like anyone desecrating a holy thing.
posted by jb at 12:08 PM on May 11, 2010


The thieves are idiots, whomever they are.
posted by Atreides at 5:53 AM on May 12, 2010


Anonymous letter explaining cross theft sent to Desert Dispatch
1. The cross in question was not vandalized. It was simply moved. This was done lovingly and with great care.

2. The cross has been carefully preserved. It has not been destroyed as many have assumed.

3. I am a Veteran.
There's more...
posted by lullaby at 11:57 AM on May 14, 2010 [2 favorites]


Wow.
posted by zarq at 12:32 PM on May 14, 2010


So...someone disagreed with the Supreme Court, calls them discriminatory, and took the cross hostage....but they've apparently wrapped it in silk and have it surrounded by candles and/or praying nuns, until their demands of a non-discriminatory monument to WW I dead are met.
posted by Atreides at 9:20 AM on May 18, 2010


Your hyperbole is hilarious, Atreides, but the fact that is was removed "lovingly and with great care" and has been "carefully preserved" is, I think, a nod of respect to hir fellow veterans, not to the cross itself. Apparently, the person who removed the cross believes that one can disagree with something without shitting all over it.

Praying nuns? Really?
posted by rtha at 10:10 AM on May 18, 2010


It was instead anti-discrimination. If this act was anti-Christian, the cross would not have been cared for so reverently - From the letter


Apparently, the person who removed the cross believes that one can disagree with something without shitting all over it.

Which doesn't mean their behavior is any less proper.
posted by Atreides at 11:49 AM on May 18, 2010


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