That’s what I think we ought to start calling these state/church separation issues. A phrase like “violation of the Establishment Clause” might interest nerds who are into constitutional law and secularism, but it’s the kind of phrase that causes everyone else’s eyes to just gloss over when spoken.
Anyway, this particular bailout comes in the form of a very weird case that goes back to 1934, when a group set up a big cross in the Mojave Desert to honor the dead from the first World War. Nobody really noticed it for a while.
The problem with this cross (besides the fact that many non-Christians died in WWI, but more on that later) is that it’s on federal land and so it amounts to a government establishment of religion, which flies in the face of the Establishment Clause of the First Amendment. Having been challenged, the government offered to sell a single acre of the surrounding land to a private organization which would then maintain the cross on “their own land.”
This is kind of the reason we have humans for judges instead of just applying the exact letter of the law in every single case like a justice-distribution machine. It’s obvious what’s happening when someone buys a single acre in the middle of a 1,500,000 acre federal nature preserve where the only thing around is a giant cross. The interested parties were just trying to get around the law by making the area immediately around the cross “private property” on paper.
So this too was challenged, it eventually reached the Supreme Court, and last week they ruled in favor of keeping the cross in the desert. The way I see it, the only way to justify this ruling would be to say that the cross was “grandfathered in.” This means that it went unchallenged for so long that any challenges to it on constitutional grounds would be invalid. But the court’s “swinger” Anthony Kennedy went even further than that by insisting that the cross is not really just a symbol of Christianity. From the Globe:
“Here,’’ [Kennedy] added, “one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.’’
This is a reiteration of an earlier and even more ridiculous exchange between Kennedy’s fellow justice Scalia and Peter Eliasberg of the ACLU on the same case:
JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: 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. I think that’s an outrageous conclusion.
MR. ELIASBERG: Well, my — the point of my — point here is to say that there is a reason the Jewish war veterans came in and said we don’t feel honored by this cross. This cross can’t honor us because it is a religious symbol of another religion.
I think Scalia and Kennedy and the other three who shared this opinion were trying to appeal to the popular images of national cemetaries where the war dead are buried. You’ll see lots of crosses there, but the reason for that is just because most soldiers – like most civilian Americans – happen to be Christian. If you look amongst the rows of crosses, you’ll see spotted here and there other grave markings of either some other religion or none at all. For example:
I don’t mean to ramble on about this forever, but the above image is of a gravestone where the family had to fight the government in court for their right to have a Wiccan symbol there. Now if soldiers all felt honored by the cross regardless of their religion, why do some opt out of having a cross? And why do some get lawyers to make sure they don’t have one there in the first place? And in the case of WWI, the reality of the draft and huge deployments overseas makes the possibility that none of them would have raised similar concerned if they were alive to do so an unrealistic premise. But those are the kinds of premises the right side of the Supreme Court seems to like best these days.