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Conflict over the Mojave cross

Church/state separation aspects. Lawsuit
filed. 2002 court ruling. Bill in Congress.

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Does the principle of separation of church and state apply here?

The principle is defined in the establishment clause of the First Amendment to the U.S. Constitution which states:

"Congress shall make no law respecting an establishment of religion..."

Later, this requirement was extended to the state legislatures as well.

Unfortunately, the clause is ambiguous:

bulletMost religious conservatives, the strict constructionists on the U.S. Supreme Court, and others interpret the clause literally. They conclude that it only prevents the government from creating an official state church or religion. So, for example, the clause would prevent Christianity from being recognized as the official religion of the U.S., as the Church of England is in the UK, or as Islam is recognized in almost all predominately Muslim countries.
 
bulletReligious liberals, and those Supreme Court justices who view the Constitution as a living document, and others interpret it as requiring -- as Thomas Jefferson wrote -- a wall of separation between religion and government. The state is neither to promote or oppress religion, and it is not allowed to promote one religious group a superior to any another. In the opinion of many observers, this "wall" has maintained relative religious peace in the U.S.

In many decades in the past, the majority view of the Supreme Court favored the "wall of separation" interpretation. This became settled opinion.

Using the "wall of separation" interpretation of the First Amendment, the courts have established various criteria for constitutionality of religious displays:

bulletReligious symbols used as jewelry, in homes, businesses, churches, other religious buildings, private parks, on tombstones etc. are constitutional, because they are protected by the free exercise and free speech clauses of the First Amendment. They guarantee religious freedom to all:

"Congress shall make no law respecting an establishment of religion; or... prohibiting the free exercise thereof; or abridging the freedom of speech..."

bulletDisplays on public land that involve symbols from different religions mixed with secular symbols are constitutional because they are considered to be cultural, not religious, displays. One example would be a Christian manger scene, a Jewish Star of David, a Wiccan pentacle, snowmen, and Santa Claus together in a town square.
 
bulletHowever, when a cross -- or any other symbol closely associated with a particular religion -- is displayed in isolation on public land, it has generally been regarded by the courts as unconstitutional because:
bulletIt promotes one religion -- Christianity -- as having a privileged position over all other religions.
bulletIt promotes religion over secularism.

Similarly, any other religious symbol shown in isolation would be considered unconstitutional, as would, for example, a secular display, like text from the Humanist Manifesto 2000. But a group of religious and secular symbols could be grouped together as a cultural display and found to be constitutional.

With the recent appointments of three justices to the U.S. Supreme Court, two of whom are known to be very strict constructionists, the fate of the Mojave cross is difficult to predict. Most religious and ethical decisions by that court have been by 5 to 4 votes; that will probably happen in this case.

It is quite likely that the ruling in this case may overturn settled law reinforced by decades of Supreme Court rulings and terminate the "wall of separation" philosophy. The results could be devastating to religious harmony in the U.S. This case is being closely watched by civil libertarians, religious leaders and others.

2001-MAR: ACLU launched lawsuit:

The American Civil Liberties Union (ACLU) believes that the cross violates the establishment clause of the 1st Amendment of the U.S. Constitution.

The ACLU initiated a lawsuit in 2001-MAR against the National Park Service on behalf of Frank Buono, a Roman Catholic and retired deputy superintendent of Mojave National Preserve where the cross is located. He is also a board member of Public Employees for Environmental Responsibility (PEER). This group has as one of its objectives to end government sponsorship of religious objects on public lands. The lawsuit was titled Buono v. Norton.

Pending resolution of the case, the National Park Service threw a large tarpaulin over the structure. This has more recently been replaced with a plywood enclosure that envelopes the cross and hides it from sight. It now looks like a small billboard with no message. Surprisingly, nobody has spray painted a cross on the plywood ... yet.

2002-JUL-24: U.S. District Court finds cross unconstitutional:

Judge Robert J. Timlin of the U.S. District Court for the Central District of California followed many decades of precedences set by the U.S. Supreme Court. He found that the presence of the cross on federal land was a violation of the establishment clause of the First Amendment. He wrote:

"The presence of the cross on federal land conveys a message of endorsement of religion." 1,2

The court issued a permanent injunction against the cross' presence on public land.

Peter Eliasberg, managing attorney for the ACLU of Southern California, said:

"Unless the government is willing to open up the land to everyone, in a come one, come all manner, then the government has no business allowing one symbol. ...One thing important to remember is the government has no more business putting up a sign saying 'God is dead,' And another thing, this is not an anti-veterans' lawsuit. There are many veterans of this country who are not Christians." 2

2003: Congress passes bill to preserve cross in its present location:

Rep. Jerry Lewis (R-CA) made arrangements to transfer ownership of a one acre piece of public land immediately surrounding the cross to the VFW. That would be about 200 feet square, or an equivalent area in another shape. In exchange, the government would receive five acres of private land elsewhere on the Preserve. That would mean that the cross would be sitting on private, not public, land in the middle of the preserve. Thus, he hoped, there would be no church-state conflict. 1 He added his enabling bill in the form of an amendment to the 2003 Defense Appropriations Act. The bill passed.

The story continues...

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Robert Longley, "Government Loses Latest Battle Over the 'Mojave Cross.' Judge rules act of Congress to save cross a 'sham'," About.com, undated, at: http://usgovinfo.about.com/
  2. "Ruling may mean end of Mojave cross 'Separation of Church & State again'," The Press Enterprise, 2002-JUL-26, at: http://www.freerepublic.com/

Copyright © 2001 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-OCT-09
Author: B.A. Robinson

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