First Test: Sotomayor Will Help Decide Fate Of Cross In California Park

Yesterday afternoon, the U.S. Senate voted to confirm Sonia Sotomayor for a seat on the U.S. Supreme Court, the third woman and the first Latina to ever serve as a justice.

It's a historical milestone, and Americans United is looking forward to watching the new justice in action, particularly when it comes to church-state issues.

As we have mentioned before, we know very little about Sotomayor's views on our issues. That will change in upcoming months.

The newest justice and her colleagues have before them Salazar v. Buono, a case the Supreme Court will hear this fall. Her opinion in that California dispute will be the first indication as to whether AU and Sotomayor see eye-to-eye on the Constitution.

Americans United filed a friend-of-the-court brief in Salazar last week because a lot is at stake in the case. The Religious Right has used this lawsuit to wage war on long-standing court precedent that allows those who are forced to view permanent religious displays on public property the right to sue.

These are the facts Sotomayor will be taking under consideration:

A former National Park Service employee brought a lawsuit in 2001, requesting the government to remove a nearly eight-foot-tall Latin cross made of metal pipes and mounted to a rock in the middle of the Mojave National Preserve.

Though the original cross was put up in 1934 by a veterans' group and dedicated to the "Dead of all wars," the current cross had no such dedication and was put up by a private individual without permission from the government.

When the park refused to remove the cross, a citizen requested permission to erect a "stupa" (a Buddhist shrine) nearby. Park officials declined and said they would take legal action if the stupa were put in place.

A federal district court and the 9th U.S. Circuit Court of Appeals found that the park had acted unconstitutionally and ordered the removal of the cross. In the meantime, Congress passed three laws over the next few years – one that prohibited federal funds from being used to remove the cross, another that declared the current cross to be a national memorial and a third that transferred a small parcel of land beneath the cross to a private party.

This made it impossible for the National Park Service to follow the Ninth Circuit's order to remove the cross.

Frank Buono sued again. The federal and appellate courts said the land transfer was a scam and did not correct the unconstitutionality of the cross' presence in the Mojave National Preserve.

Now, the U.S. Supreme Court will decide if Buono, as someone offended by the presence of the cross, had the right to file this lawsuit, and secondly, if the land transfer should be carried out.

Religious Right groups are saying anything they can to save the cross. They claim, for example, that this cross is merely a secular symbol in honor of all our veterans, despite the fact that 29 percent of our military personnel are not Christians.

They are saying that Buono, and others in the future, should not be able to sue in these types of cases, because "stripping this country of every symbol – even the religious ones – that might offend somebody somewhere will impoverish American culture."

Though dozens of Religious Right groups have filed friend-of-the-court briefs, Americans United and our allies are countering their work. Several civil liberties and religious groups have filed briefs urging Sotomayor and the other eight justices not to fall for the Religious Right's tactics. (To view all the briefs filed in this case, see the American Bar Association Web site.)

Among those filing a brief is the Baptist Joint Committee for Religious Liberty (BJC). BJC General Counsel K. Hollyn Hollman said the concern in this case is not only for those offended by the religious symbols on public land, but also for those who feel the government's use of religious displays, "threatens to deprive religious symbols of their sacred character."

As you can see, Sotomayor and others on the high court will have a lot to consider come Oct. 7, when oral arguments are scheduled in this case. We hope they make the right decision.