A Cross, The Court And The Constitution

Religious Right Groups Are Trying To Rein In Citizens’ Right To Challenge Government-Sponsored Religious Symbols

One afternoon in 1995, Frank Buono noticed something strange as he was driving down a road that weaved through the 1.6 million acres of the Mojave National Preserve in southern California. He spotted a nearly eight-foot Latin cross made of white metal pipes and mounted on a 15-foot rock outcropping in the middle of the desert.


“I saw it from the road, and I needed to know how it got there,” said Buono, who had just been appointed assistant superintendent of the preserve by the National Park Service.


He wondered whether the park service knew the cross was there and if it had ever granted permission to erect the religious symbol on government land. He also wondered whether it was constitutional for a religious symbol to be permanently displayed in a national park.


For years, these questions lingered in Buono’s mind. After some research into the records of the National Park Service and U.S. Bureau of Land Management, he learned that nobody had requested permission to mount the cross.


Over the years, however, park officials declined to act on the issue, and Buono became increasingly convinced that the religious symbol’s presence on federal land was unconstitutional. He was offended by the cross because it gave the appearance the government was favoring one religious belief over others, and he sued to have it removed.


“Being Catholic, I know that in the history of the U.S., Roman Catholicism was not always regarded well,” Buono told Church & State. “There was a deep discrimination, both in colonial America and the new republic.


“So it’s always been my feeling that people should have freedom of religion,” he continued. “The greatest threat to that freedom is when the government is not neutral toward religion. To me, this cross on public land seemed like the government was preferring one religion over others.”


Two federal district courts and two federal appeals courts have since agreed with Buono. This fall, the U.S. Supreme Court will issue the final judgment on the matter. (Salazar v. Buono will be Justice Sonia Sotomayor’s first high court decision on church-state separation.)


Americans United filed a friend-of-the-court brief on behalf of Buono on Aug. 3, knowing that this case is about much more than whether this particular cross stays or goes. Since Buono brought the original lawsuit to remove the cross in 2001, members of Congress and Religious Right groups have worked together to keep the religious symbol in place. Now, these forces are attempting to use this dispute as a vehicle to overturn decades of legal precedent upholding church-state separation.


The cross’s presence in the Mojave Desert dates back to 1934 when the Veterans of Foreign Wars (VFW) first erected a wooden cross on a granite outcropping known as Sunrise Rock. At that time, the religious symbol was accompanied by a plaque that said, “The Cross, Erected in Memory of the Dead of All Wars.” (That action occurred before the government declared the land a national preserve.)


Since 1934, private parties have replaced the cross several times without an accompanying sign, and Sunrise Rock has been used as a gathering place for Easter services. 


The particular cross at issue in Salazar was put up by an individual on his own accord without a memorial sign or plaque. In 1999, a long-time acquaintance of Buono’s, realizing that park officials seemed intent on allowing the Christian symbol to remain in place, requested permission to erect a stupa, a dome-shaped Buddhist shrine, on a spot near Sunrise Rock.


“I was shocked,” Buono recalled, “because not only did they tell him no, that it was a violation of the regulations, but they said if he put it there, he would be subject to citation or arrest. The park service knew about the cross and they asked the person who put it there to take it down, but they never threatened to arrest him, nor did they ever take it down themselves.”


Buono then contacted the American Civil Liberties Union, which sent a letter to the National Park Service insisting that the cross be removed. Aware that a lawsuit might be in the offing, the park service requested the private individual who erected the cross to remove it.


“He told them no, and that if they removed it, he would just put it back up again,” Buono said. “The park just said ‘fine’ and acted like a helpless giant.”


When the park service finally informed the ACLU that it would remove the cross, larger political maneuvers were set in motion. After receiving word of this decision, U.S. Rep. Jerry Lewis (R-Calif.) was able to convince Congress to approve an appropriations bill rider that prevented the use of any federal funds to remove the cross.


Then in 2001, Congress again acted, approving funds to install a memorial plaque at the foot of the cross. The measure declared the sectarian symbol a “national memorial commemorating United States participation in World War I and honoring the American veterans of that war.”


Over the years, Religious Right groups and their political allies have argued that the cross is merely a veterans’ monument having little or no religious significance. But this attempt to save the cross only makes matters worse, Buono said.


“People have gone there for Easter Sunday, not Veterans Day,” he noted. “It’s clearly a cover for what it really is: a religious shrine.”


Eric Rassbach, national litigation director of the Becket Fund, a Religious Right group that filed a friend-of-the-court brief defending the cross, said, “If the Supreme Court strikes down this memorial, tens of thousands of memorials around the country stand at risk.”


Only if they are also government-sanctioned religious symbols that violate the Constitution and falsely claim to represent all of our country’s veterans, said Americans United Executive Director Barry W. Lynn.


“The cross is a powerful symbol of the Christian faith,” he said. “It does not represent all Americans who have died protecting our country. It does not represent the 29 percent of our current service members in the military who are not Christian.”


Many veterans’ groups have filed friend-of-the-court briefs asking the high court to remove the cross. For Col. David Antoon, who spent 25 years on active duty in the Air Force, the government’s endorsement of the Christian symbol is not only divisive, it is another example of how sectarian religion is becoming “part of the fabric of the military.”


“The military should be totally blind to religious faith,” he said. “This really is destroying the diversity in our military – the diversity that makes this country great.”


Antoon and other former high-ranking military officials submitted a brief, which asserts that “members of minority faiths have served with distinction in every war in United States history” and the Mojave Desert cross gives these service members the impression that they are outsiders. 


“That is not only a clear constitutional violation, but is also harmful to the military as an institution,” the brief asserts. “[T]he message sent by a war memorial like the cross undermines unit cohesion –; which is absolutely critical to the military’s ability to function in combat, as well as in other settings – by fostering a military culture that is intolerant of religious difference and that causes minority populations to feel excluded.”


Other veterans groups that have filed friend-of-the-court briefs asking the high court to remove the cross are: The Military Association of Atheists and Freethinkers, the American Muslim Armed Forces and Veterans Affairs Councils, the Muslim American Veterans Association and the Jewish War Veterans of the United States. (The Military Religious Freedom Foundation joined AU’s brief.) 


Despite Congress’ attempts in 2001 to keep the cross standing by declaring it a veterans’ memorial, a federal district court ruled in Buono that the government had violated the Constitution and that the cross must be removed. The 9th U.S. Circuit Court of Appeals agreed.


But while the case was pending before the 9th Circuit, Congress passed legislation in 2004 ordering that an acre of land beneath the cross be transferred to the VFW as part of a property exchange. The federal law said that if the VFW were ever to stop using the land as a war memorial, the land would return to the government’s possession.


A federal district court ruled that this transaction violated the court’s previous order and forbade the National Park Service from going ahead with the land transfer. The 9th Circuit upheld the decision.


Now, the U.S. Supreme Court will decide whether the land transfer makes the cross’s presence constitutional. At the same time, the high court will also decide whether Buono, as a citizen who viewed the cross and was offended by it, has “standing” (the right to sue).


Religious Right strategists hope to use this case to destroy important protections that preserve church-state separation. Groups that have submitted legal briefs on behalf of maintaining the cross include: TV preacher Pat Robertson’s American Center for Law and Justice (ACLJ), the late Jerry Falwell’s Liberty Counsel, Christian Legal Society, Thomas More Law Center, CatholicVote.org, the National Association of Evangelicals and Alabama “Commandments Judge” Roy Moore’s Foundation for Moral Law, among others.


These Religious Right groups insist that Buono and other Americans do not have the right to sue in cases like this. According to them, the offense a person feels at viewing a government-sponsored religious display is not a sufficient injury to entitle the person to sue in court and should not be cause for a display’s removal.


Government-sponsored religious displays “do not force anyone to participate in a religious exercise and, thus, do not establish religion,” said Liberty Counsel’s Mat Staver, who added that such enforcement of church-state separation goes against our “country’s heritage.”


The Becket Fund’s Rassbach said, “Stripping this country of every symbol –; even the religious ones –; that might offend somebody somewhere will impoverish American culture.” 


ACLJ attorney Jay Sekulow filed a brief in this case on behalf of 15 members of Congress who want the Mojave cross to stay where it is.


“This case represents,” said Sekulow, “the most extreme example of a phenomenon that has plagued the federal courts for decades –; ideologically motivated citizens and public interest groups search out alleged Establishment Clause violations, almost always in the form of a passive religious symbol or display of some sort, and turn it into a federal case because they are offended. It’s time for the high court to put an end to this disturbing practice.”


In their attempt to alter long-standing legal doctrine, these groups argue that religious symbols have little effect on the observer. But Americans United counters that argument, insisting that the harms inflicted by government displays are too significant to go unremedied.


AU’s brief cites studies that have shown that even “subliminal exposure to a symbol of one’s own faith can yield physical as well as psychological benefits, while similar exposure to what one might consider a ‘negative’ religious symbol can be correspondingly detrimental.”


“The cross is the supreme emblem of Christianity,” said AU Assistant Legal Director Richard Katskee, who participated in drafting AU’s brief. “To say that it has no effect, is insignificant or passive, is really stripping the cross of its essential nature, for those who cherish it and those who do not.”


AU’s brief argues that if the court buys into the Religious Right’s arguments and deprives Buono and other Americans of the right to sue in cases such as this, it would overturn decades of settled law.


“Citizens subjected to government-sponsored religion through spoken or written words can bring a lawsuit,” Katskee said. “I don’t see how someone who is subjected to the same message transmitted in a symbolic form should lose that right.”


In addition, the Supreme Court will decide if the land transfer serves as a remedy to fix the constitutional problem of a religious symbol on government land. AU says it does not.


“The government could not, for example, replace the Statue of Freedom atop the U.S. Capitol dome with a large Latin cross, and then insulate the display from constitutional scrutiny by selling the spot to a private party,” the brief asserts. “Nor should governmental authorities be able to sell a public school’s lobby or a county courthouse’s staircase to permit the erection of religious statues there, no matter how emphatically disclaimed the displays might be. Those locations are simply too closely aligned with the government to permit their privatization.” (In addition to Katskee, the AU brief was drafted by AU Madison Fellow Elizabeth Stevens, with assistance from summer law clerks Kate Willcox and Alex Stone-Tharp and guidance from AU Legal Director Ayesha N. Khan.)


Joining AU on the brief are the Anti-Defamation League, the Jewish Council for Public Affairs, the Military Religious Freedom Foundation, the North American South Asian Bar Association, People For the American Way Foundation and the Union for Reform Judaism.


Buono said he never thought the Religious Right would use his lawsuit to “slam the courthouse door on people like me.”


“It seemed to me back then that it was a clear-cut case,” he said. “The district court and the 9th Circuit also thought so.”


When a decision comes down in 2010, Buono will know if the Supreme Court thinks so, too. Oral argument before the justices is set for Oct. 7.