Constitutional Law

Cross Purposes: Supreme Court To Decide Fate Of Mojave Religious Symbol

by Rob Boston, the  senior policy analyst at Americans United for Separation of Church and State. Boston is also the author of several books on First Amendment issues and the nation's socially conservative religious movement, including "Why the Religious Right is Wrong About Separation of Church and State."

The Supreme Court announced yesterday that it will hear a controversy over a cross on federal land in California. This is an alarming development for several reasons.

It should be obvious that this cross is unconstitutional. It sits on land within the Mojave National Preserve, and attempts to add another religious symbol to the area were turned down.

Prodded by a right-wing congressman, Congress in 2004 added a rider to a Defense appropriations bill trading the land beneath the cross to the Veterans of Foreign Wars for some other land the VFW owns in the park. This was an obvious ruse, and the 9th U.S. Circuit Court of Appeals had no trouble seeing through it.

The 9th Circuit made the right call in declaring that the cross must go. It’s troubling that the Supreme Court wants to review this matter.

But there’s more bad news: The high court is also going to look at the legal issue of standing. For years, the federal courts have permitted people to sue over religious symbols on public property, holding that these displays offend some people or send the message that they are second-class citizens.

If the court uses the Mojave case to trash that standard, it will have a profoundly negative effect on efforts to uphold the separation of church and state. After all, how can people defend their rights if they can’t even get inside the courthouse door?

In 2007, the Supreme Court ruled that taxpayers have no right to challenge “faith-based” funding that emanates from the White House. The narrow plurality ruling in Hein v. Freedom of Religion Foundation was a blow to efforts by church-state separation watchdogs to protect the American public from being forced to subsidize religion. 

Will the high court do the same in the Mojave case? It’s hard to say. Chief Justice John G. Roberts and Associates Justices Samuel A. Alito, Clarence Thomas and Antonin Scalia seem hostile to an expansive view of standing. But Justices David Souter, Ruth Bader Ginsburg, John Paul Stevens and Stephen J. Breyer hold the opposite view.

That leaves Justice Anthony M. Kennedy right in the middle.

Kennedy’s view on separation of church and state can be quirky. In 1992, he surprised everyone by authoring Lee v. Weisman, which struck down school-sponsored graduation prayers. But in 2005, he ruled with the majority approving a government-sponsored Ten Commandments display in Texas.

During the oral argument of that case, Kennedy seemed untroubled by the idea that some might be offended by a religious display on government land. “This is the classic ‘avert your eyes,’” he chided. “If an atheist walked by, he can avert his eyes, he can think about something else.”

Will Kennedy say the same about a cross on government property? Will he buy into the ruse that the cross now sits on private land? Will he vote to slam the courthouse door in the faces of those who want to challenge such a display? Stay tuned.

Full post as published by ACS Blog on February 24, 2009 (boomark / email).