The Supreme Court Rules on the Old Rugged Cross

On top of a 30-foot-high rock outcropping in the Mojave National Preserve in California, stands an old rugged eight-foot-tall Latin cross that has become the latest target as a religious object on public lands. This cross shaped Veteran’s Memorial was placed on land that had been transferred to a veteran’s group from the government. The Supreme Court has recently ruled the transfer constitutional and they also ruled that the constitution doesn’t oblige government to avoid any public acknowledgment of religions role in society. The ruling allowed the cross to stay, but it was sent back to the lower court with guidelines for consideration.

Georgene Rice of KPDQ-FM talks with Joe Enfranco, Sr. VP of the Alliance Defense Fund to discuss the ruling.

Georgene: Does this ruling have significance beyond the obvious?

Joe: I think it does. Justice Kennedy wrote the majority opinion and he uses very strong, sweeping language about how it is proper to acknowledge our religious tradition with these symbols.  Justice Kennedy has been the swing vote and he has dropped an anvil-like hint on how he views these cases.  

Georgene: This case was filed by the ACLU representing a former Mojave reserve employee who claims he was offended. Tell us about how the case originated.

Joe: This cross was erected in 1934 to honor veterans. When the land became part of a federal preserve in 2000 the ACLU filed suit defending one, lone individual who claims he was offended by the symbol. Now, keep in mind, this cross is way in the middle of the Mojave Desert. You have to go a long way to find it in order to be offended. Justice Alito said it was more likely to be seen by rattlesnakes than human beings.

The American Legion & VFW, who we represent in California, were furious with this lawsuit. They felt the lower court’s ruling to protect this one individual’s agenda dishonored veterans and diminished the sacrifices they have made. The sight of plywood covering that cross because of an order by the 9^th Circuit Court was despicable.

When the Supreme Court sent it back to the 9^th Circuit, Justice Kennedy talked of how the cross has a military history. He even invoked the beaches of Normandy where you see many crosses. He made the point that this was a valid way for the military to recognize and honor veterans.

Georgene: This memorial cross has existed in many forms in that location since 1934. The Mojave Superintendent who brought the suit claimed falsely that one of his associates had been denied an application to install a Buddhist symbol near the memorial. Did the fact he lied in his original claim impact the decision of the court?

Joe: It didn’t really get mentioned but it was a ludicrous claim and it said a lot about what was behind the case. It was some fictional character like Sherpa San. It was remarkable that it did not get more play.

Georgene: The Supreme Court has sent it back down to the 9^th Circuit. What does that mean in terms of decisions the court could alter in allowing the cross to remain?

Joe: It was sent back with guidelines, but if you look at the guidelines I don’t see any way the 9^th Circuit could do anything but order the transfer valid and the cross to stand. As a matter of fact, some of the other Justices thought they shouldn’t even send it back and just order the transfer valid. I think it was just a polite way it is normally done. It is sent back to the lower court, you explain the law, and give them the contours.

But, these guidelines are important for other cases. There have been other attacks on religious symbols. For example, we’re representing a case in the 10^th Circuit where state troopers were slain in the line of duty and their families put up roadside crosses memorializing their death. An atheist group filed a lawsuit claiming they were offended. We won the case in the federal district court and they have appealed. What Justice Kennedy said, among other things, was that a cross by the side of a public highway marking the place where a trooper perished need not be taken as a statement of government’s support for sectarian beliefs. I think he was sending the 10^th Circuit a big hint on how to look at those.

Georgene: It seems to me the premise behind these objections is that “I have a right to be free from offense”, particularly if that offense is generated by any religious expression. Even though that symbol may represent the feelings of 50 people, removing an object if one person feels offended seems a faulty premise. In a pluralistic society it ought to be thrown out on that ground alone.

Joe: You are right. In fact, a few of the Justices writing a concurring decision said they didn’t even think the employee had standing. We raise this question all the time. As we said, the veterans were furious that one person’s agenda could diminish the sacrifices made by veterans and their families. They have rallied millions of their members and have been working with us on a project to protect veteran’s memorials. On our site we log these memorials.

Georgene: Does this ruling reduce the likelihood of further challenges of this nature.

Joe: I think so. Some who didn’t like the result may say this was just a narrow case dealing with a technical land transfer, but they’ll be missing the point the court was conveying. Kennedy was clearly saying you cannot be hostile against religious expression. That is not the kind of accommodation the constitution talks about.