The boxed-up cross on Sunrise Rock, Mojave National Preserve. Photo by Florian Boyd.
As far as I can determine from reading the decision [PDF], and contrary to what’s being widely reported today in the case of the Mojave Cross on Cima Dome, the Supreme Court has not ruled that religious symbols may be displayed on public land.
What the court actually did was construct a rationale based on a doctrine of “accommodation” of diverse religious beliefs to quash a lower court’s ruling that NPS could not give the piece of land surrounding the cross to a private party.
Justice Stevens, who wrote the dissenting opinion, didn’t challenge that rationale, merely the decision:
As the history recounted by the plurality indicates, this case comes to us in a procedural posture that significantly narrows the question presented to the Court. In the first stage of this litigation, the District Court and the Court of Appeals ruled that the Government violated the Establishment Clause by permitting the display of a single white Latin cross at Sunrise Rock. Those courts further ruled that the appropriate remedy was an injunctionprohibiting the Government from “permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” The Government declined to seek a writ of certiorari following those rulings. Accordingly, for the purpose of this case, it is settled that “the Sunrise Rock cross will project a message of government endorsement [of religion] to a reasonable observer,” and that the District Court’s remedy for that endorsement was proper.
We are, however, faced with an additional fact: Congress has enacted a statute directing the Secretary of theInterior to transfer a 1-acre parcel of land containing the cross to the Veterans of Foreign Wars (VFW), subject to certain conditions, in exchange for a 5-acre parcel of land elsewhere in the Preserve. The District Court found that the land transfer under §8121 “violate[d] [the] court’s judgment ordering a permanent injunction” and did not “actually cur[e] the continuing Establishment Clause violation.” The District Court therefore enforced its 2002 judgment by enjoining the transfer, without considering whether “the land transfer itself is an independent violation of the Establishment Clause.” Because the District Court did not base its decision upon an independent Establishment Clause violation, the constitutionality of the land-transfer statute is not before us. Instead, the question we confront is whether the District Court properly enforced its 2002 judgment by enjoining the transfer…
Although I agree with the plurality’s basic framework, I disagree with its decision to remand the case to the District Court.
I’ve never really been able to get too worked up about the existence or placement of the cross. It’s old enough to qualify as a historic resource, and besides there are icons sacred to MY religion running all over Cima Dome at night singing songs and eating bunnies. To my mind, the decision was far less ominous from a civil rights perspective, and far more ominous from the perspective of someone wishing to see the Preserve preserved. I’m glad the land transfer deal involves adding five acres of other land to the Preserve in exchange for one acre around the cross. This one acre, however, is one of the most-visited in the Preserve. It is subject to abuse already, and without direct NPS enforcement of things like campfire restrictions, use of this one acre could have drastic effects on the rest of Cima Dome.
I know what you mean Chris. I went back to the cross recently to refilm a little video for my blog and there was a large rv, generator running, people everywhere, obviously camping right next to that large, beautiful juniper there on the north side of Sunrise Rock.
I expect we will see more of this there, at least till the furor dies down.
I agree it has historical value, was up 70 years or so before the suit was filed, but we
will see what happens again back at the district court level.
This has got to be the most contentious cross I’ve ever seen!
Beyond the convoluted idea or trading off land in the middle of the Preserve this all should’ve been much ado about nothing. As mentioned, the cross is nearly a historical resource itself.
Reminds me of a discussion I had with an old friend back in the day. He was scraping his name in the rock around Lake Perris, and I called him on it. His question was why were his actions considered vandalism when the same thing done by aboriginal people is considered valuable history? The point I made was that context matters, and likewise here. Viewing the cross in relation to the time it was created makes more sense than assuming it was placed there to give our constitutional society the finger.
Should people go around jacking new symbols into rocks and trees? We have plenty of other nondestructive ways to express ourselves. Should we rip out something that’s been there longer than most of us have been alive? If it’s not doing someone physical harm we could learn more from it leaving it intact than pretending it was never there. Hey, if the condition of the road leading to Providence Mountains SRA is any indication the desert will reclaim that cross soon enough, anyway.
Unfortunately, this is a loss for the ACLU, of which I support, but even as a liberal minded deist (for lack of better descriptor) like many of our Founding Fathers, I find myself agreeing with the conservative court in this instance. To me, freedom of speech trumps religion and includes the ability of the public to erect a cross on public land in memory of a life worthy of remembrance. The Army has erected a number of small (hip high) white crosses along the shoulder of Fort Irwin Road to mark where a life ended in a traffic accident to remind the rest of us to be careful driving this road. Their purpose is not to claim Christianity is preferable to another faith, but the crucifix is ubiquitous with a grave marker and thus the end of life. So here the image is used to instill safety while the VFW was merely endeavoring to memorialize their fallen brethren from a long ago war. Both uses are an expression of free speech, which in my view should take precedent over those who may find offense in such speech. Just as the American Nazi Party was permitted to march on public roads in the Jewish community of Skokie, IL in the late 1970’s, so too should all Americans be permitted to express themselves on public lands. I concede I may be wrong about this, but it is JMHO.