WASHINGTON, D.C. — Few issues rouse passions as deeply as the proper role of religion in the public square. Ask nine citizens their views on the subject and prepare to hear nine different opinions.
It’s the same at the US Supreme Court. On Tuesday, a sharply-divided high court plunged into a controversy over a five-foot-tall white cross in a Mojave Desert preserve owned by the federal government.
The cross was erected by private citizens in 1934 as an ad hoc memorial to war veterans. More than 70 years later, a federal judge declared it a violation of the separation of church and state because the cross was on federal land.
Now, the resulting litigation has unleashed a national debate. On one side, lawyers with the American Civil Liberties Union (ACLU) say such stand-alone religious symbols have no place on public land. On the other side, veterans and certain religious groups accuse the ACLU of waging a campaign to wipe any sign of religious faith from public property.
Congress versus the courts
Specifically at issue in Salazar v. Buono is a disagreement between Congress and the federal judiciary over how best to resolve the controversy over the cross.
Once the court declared the cross in violation of the First Amendment’s establishment clause in 2002, Congress faced a difficult choice. Tear down the cross and anger veterans groups, or somehow disassociate the government from the cross.
Congress chose to turn the land over to a veterans group and designated the display a national memorial, one of only 49 such memorials in the nation. It also told the veterans group that if the land wasn’t used as a war memorial, the property would revert back to the federal government.
What the Supreme Court must now decide is whether the Congressional maneuver cured the church-state violation or was simply a sham.
On Wednesday, Solicitor General Elena Kagan urged the court to uphold the Congressional action. Congress acted to create “a national memorial” and left it to the veterans to decide whether it would include a cross, she said.
But no real transfer had taken place, argued Peter Eliasberg of the ACLU. “The government in this situation has made a number of steps to ensure that the cross remains up,” he told justices Wednesday.
The clear aim of Congress was to bypass the judicial order and find a way to keep the cross up, he said.
A designated war memorial
Congress included a clause in its land swap with the veterans. It says that if the property isn’t maintained as a war memorial, it would revert to the government.
To some, this suggests that if the veterans dismantled the cross they would lose the land. But Ms. Kagan said the only requirement was that the land continue to be used as a memorial, not that the cross be retained.
Congress also ordered that a plaque be located at the memorial site. It says in part: “The cross, erected in memory of the dead of all wars….”
Such a plaque would only make sense at a memorial featuring a cross. To some, this is evidence that Congress sought to keep the cross up.
Kagan told the justices that the federal preserve in the Mojave Desert is riddled with about a thousand private land owners. Ten percent of the surrounding region is privately owned, she added.
“Tomorrow, 1,000 crosses could go up and no one would know if they were on private land or not,” she said, suggesting that it’s difficult for an average observer to attribute a government message to a cross on a hill.
In comments outside the court, Mr. Eliasberg said the church-state violation would have been resolved had the government established a neutral process with competitive bids to transfer the cross site to a private landowner. Instead, he said, Congress granted preferred access to the veterans.
Several veterans groups’ leaders expressed concern after the hearing that if the ACLU won its case, war memorials across the country would soon come under attack.
“The idea that this case represents a wedge to get at all memorials is simply not true,” Eliasberg said.