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UPDATE! – Mojave Cross Case
By Tony Snyder | May 20, 2010
As faithful readers will recall, this blog discussed an important Supreme Court case (Salazar v. Buono) which dealt directly with a religious symbol on government land and what, if any, Establishment Clause issues might have arisen because of this cross. As a refresher from the previous post:
The background on the Salazar case is as follow: A 7-foot tall crucifix was placed on plot of land in the Sunrise Rock area of the Mojave National Preserve in 1934. The interesting twist comes from the fact that the government never approved the placement of the crucifix in the first place when it was donated by the Veterans of Foreign Affairs (VFW). Buddhists were denied an opportunity to place their own memorial on the land and the issue has been fought out in both Congress and the federal court system since 2000.
After the crucifix was slated to be removed by the U.S. National Park Service (NPS), Congress passed a law which would have prohibited the use of public funds to remove the cross, essentially preventing the NPS from taking any action. In 2002 Congress declared the cross to be a National Memorial and gave the small plot of land to the VFW in 2003. Hence, no public land, no violation of the Establishment Clause—after all, the VFW can do whatever they want with its private land.
The Supremes remanded the case back to a federal judge to re-examine the Congressional plan to transfer the patch of U.S. land beneath the 7-foot-tall cross made of metal pipe to private ownership.
“The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society,” stated Justice Anthony Kennedy, who drafted the majority opinion. “Here 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 comes as a blow to the American Civil Liberties Union as Kennedy is usually a center-left jurist when it comes to church-state separation cases.
This decision should not, however, come as surprise as the Supremes have repeatedly stated that religious displays must be evaluated as a whole, not as a separate entity. This cross was never intended to be a religious affectation, and for that matter, never erected by an act of Congress. The VFW donated the crucifix as a memorial for the fallen soldiers of our country and it was an angry Buddhist who missed the intent of the memorial. The Buddhist had no desire to commemorate the death of our soldiers by placing their own tribute; to the contrary, they merely wanted to make a point—or at least attempt to make a point.
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