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Salazar v. Buono : The Right Decision Was Issued -- Narrowly: The Symbol of the Cross and the Separation of Church and State are Compatible

By Andis Kaulins

Some time ago, Ernie the Attorney wrote:

"Ah, symbols. What would we do without our rules and our symbols?"

Well, we just had an important U.S. Supreme Court decision on symbols, Salazar v. Buono - thankfully, the United States Supreme Court reached the right result in this just issued case decision by the narrowest of margins, with some members of the United States Supreme Court and lower courts -- in our opinion -- in need of taking a refresher course in the History of Western Civilization. The Ninth Circuit Court of Appeals was overruled again, as it should have been.

Gabriel Nelson of Greenwire writes at the New York Times in Supreme Court Sides With Interior on Mojave Desert Cross:

"The Supreme Court ruled today [April 28, 2010] that Congress and the Interior Department acted properly when they used a land transfer to solve a dispute over a cross on display in the federal Mojave National Preserve."

 As Justice Kennedy wrote for the 5-4 majority:

"In 1934, private citizens placed a Latin cross on a rock outcropping in a remote section of the Mojave Desert.Their purpose and intent was to honor American soldiers who fell in World War I. The original cross deteriorated over time, but a reconstructed one now stands at the same place. It is on federal land.
The Court is asked to consider a challenge, not to the first placement of the cross or its continued presence on federal land, but to a statute that would transfer the cross and the land on which it stands to a private party. Department of Defense Appropriations Act, 2004, Pub. L.108?87, §8121(a), 117 Stat. 1100. The District Court permanently enjoined the Government from implementing the statute. The Court of Appeals affirmed. We conclude that its judgment was in error."

We ourselves are extremely staunch proponents of the separation of Church and State to a far greater degree than most (e.g. we do not support tax benefits for any alleged religion or sect)  but in America judges and Justices have to be able to distinguish the essence of a given Church or religion from the symbols of Western Civilization -- symbols which far antedate Christianity and reach into prehistoric time.

The separation of Church and State as a matter of Constitutional Law does not mean that a culture has to chuck its long-standing symbols into the river, just because they have religious aspects.

A cross may be a Christian symbol too, but the use of a cross to honor the deceased goes way back to antiquity, when the progenitor of the symbol of the cross was surely the symbol of life.

You can no more remove crosses from national monuments than you can remove all the crosses marking graves of known and unknown soldiers in national cemeteries around the world. So our opinion. That is actually what the Supreme Court SHOULD have decided, but even though they did not, they reached the right result in keeping the cross intact as a symbol of honor for war dead.

As the owner and moderator of the Internet's first -- and still only -- discussion group to concentrate specifically on the History of Civilization (see LexiLine), we deal with the symbols of mankind often in our analysis of ancient cultures.

One such symbol is the cross, which can arguably be traced back to the Pharaonic Egyptian ANKH. As written at the Wikipedia:

"Another symbol that has been connected with the cross is the ansated cross (ankh or crux ansata) of the ancient Egyptians, which often appears as a symbolic sign in the hands of the goddess Sekhet, and appears as a hieroglyphic sign of life or of the living. In later times the Egyptian Christians (Copts), attracted by its form, and perhaps by its symbolism, adopted it as the emblem of the cross.^[1] In his book, The Worship of the Dead (London, 1904), p. 226, Colonel J. Garnier wrote: "The cross in the form of the 'Crux Ansata' . . . was carried in the hands of the Egyptian priests and Pontiff kings as the symbol of their authority as priests of the Sun god and was called 'the Sign of Life'.""

We can read about the Celtic Cross:

"In Ireland, it is a popular legend that the Celtic Catholic cross was introduced by Saint Patrick or possibly Saint Declan during his time converting the pagan Irish, though no examples survive from this early period. It has often been claimed that Patrick combined the symbol of Christianity with the sun cross, to give pagan followers an idea of the importance of the cross by linking it with the idea of the life-giving properties of the sun....^[3]"

As Justice Alito perspicaciously wrote in his concurring opinion In Salazar v. Buono:

"I would not jump to the conclusion that Congress? aim in enacting the land-transfer law was to embrace the religious message of the cross; rather, I see no reason to doubt that Congress? consistent goal, in legislating with regard to the Sunrise Rock monument, has been to commemorate our Nation?s war dead and to avoid the disturbing symbolism that would have been created by the destruction of the monument."

Justice Alioto, we agree fully with you. Bravo!

We are profoundly disturbed by the lack of understanding shown on this important matter by the dissenting Justices in this critical case. You simply can not be granting all kinds of rights to the rest of world and denying them to your own people and to your own culture.

Justice Stevens, with Justice Ginsburg and Justice Sotomayor concurring in his dissent, is in our opinion not leaving the Supreme Court on a high note with his support of the conclusion that the cross should have been removed because it is a Christian symbol. Stevens writes:

"A Latin cross necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ. In my view, the District Court was right to enforce its prior judgment by enjoining Congress? proposed remedy?a remedy that was engineered to leave the cross intact and that did not alter its basic meaning. I certainly agree 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."

Stevens is wrong on almost all counts. This is not another "ten commandments" case, which is by contrast a purely sectarian message, which no one doubts. The cross -- on the other hand -- does not "necessarily" symbolize the belief in a "benevolent Creator", as Stevens claims that it does -- it most certainly does not for this writer - and it does not necessarily "endorse a starkly sectarian message". Many of the men and women whose grave a cross marks may not have had any particular religious connection at all -- religious sectarianism is not the point here.

Rather, the cross is a symbol of honor for the deceased in our civilization and we have a right to so honor those who have passed, on federal land or off such land. The honoring of the deceased transcends any specific religion -- you have to be careful, dear judges and Justices, in thinking that the law can separate itself from the culture in which it is embedded. It can not. There are certain lines which simply can not be "crossed" without great danger to the established order. Prevailing cultural symbols mark one of those lines.

Full post as published by LawPundit on April 29, 2010 (boomark / email).