Conflict over the Mojave cross
Supreme Court briefs filed. Oral arguments
made. Possible impacts of the ruling.
2009: Briefs filed with the U.S. Supreme Court:
2009-OCT-07: Oral arguments before the U.S. Supreme Court:
The Supreme Court heard oral arguments in Salazar v. Buono on OCT-07.
Bob Ritter, Legal Coordinator of the Appignani Humanist Legal Center,
a division of the American Humanist Association, commented:
"It looks like it will be a very close vote, with Justice Kennedy issuing the
deciding vote. It was surprising that few of the questions asked by the justices
revolved around the question of standing -- whether or not Respondent Frank Buono
has the ability to sue the federal government for violating the Establishment
Clause of the First Amendment. Rather, most questions were about the nature of
the land transfer. ... A ruling either way is likely to have profound
implications. A ruling in Buono's favor will likely lead to the removal of some
religious symbols on public property throughout America, while a ruling against
Buono may close the court house doors to others who seek to challenge
Establishment Clause violations." 3
Robert Marus of the Associated Baptist Press commented:
"Justices heard from attorneys for both sides in the Salazar v. Buono
case (No. 08-472). ... Supporters of strong church-state separation feared
the court might use the case to severely limit the ability of citizens to
file lawsuits against the establishment of religion, but justices spent much
more time debating whether the case could be decided on the narrower issue
of actions by Congress attempting to preserve the cross. ..."
"... much of the discussion turned on the procedural validity of
[U.S. Solicitor General Elana] Kagan's
assertion that the government action to remedy the constitutional violation
"A few moments of argument did highlight one significant First Amendment
controversy in the case: Whether such a monument on public land could serve
a secular purpose. In response to an assertion that the cross honored
only Christian war dead by Los Angeles attorney Peter Eliasberg, who argued
Buono's side in the case, Justice Antonin Scalia asked, 'The cross doesn't
honor non-Christians who fought in the war'?"
"Eliasberg responded, 'A cross is the predominant symbol of Christianity
and it signifies that Jesus is the son of God and died to redeem mankind for
"Scalia replied, 'It's erected as a war memorial. I assume it is erected
in honor of all of the war dead.' Describing the cross as the 'most common
symbol of the resting place of the dead,' he asked: 'What would you have
them erect? A cross -- some conglomerate of a cross, a Star of David, and
you know, a Muslim half moon and star'?"
"Eliasberg retorted: 'The cross is the most common symbol of the resting
place of Christians. I have been in Jewish cemeteries. There is
never a cross on a tombstone of a Jew." The comment brought laughter to the
"The justices barely discussed one issue that worried church-state
separationists significantly about the case -- whether Buono had legal
standing to sue the government over the cross in the first place."
Hiram Sasser, director of litigation for Liberty Legal Institute, a
conservative Christian legal advocacy group, and one of the attorneys for
the VFW in the case, commented:
"The court is probably going to say that this veterans memorial is allowed
to stay and that there was never a problem to begin with. And that the
transfer of state-owned land to the veterans so they could keep the memorial
was OK, and that this veterans memorial is going to continue to stand as it
has for 75 years honoring those World War 1 veterans."
We suspect that just about all observers agree that the final vote of the
justices would be 5 to 4 in favor of something. Recent court decisions on religious and moral issues are almost unanimously this close. But there is no consensus on which side would win.
Possible impacts of the future ruling by the Supreme Court:
Jesse Merriam of Pew Forum writes:
"The significance of the case will come down to which legal avenue the
court chooses to resolve the dispute. If the Supreme Court rules in favor of
Buono on the Establishment Clause issue, then that ruling could require
federal, state and local governments to remove many sectarian religious
symbols from memorials across the country. Alternatively, if the high court
holds that the display of the cross does not violate the Establishment Clause,
then that ruling might allow the government to give one religious group's
symbols special prominence in public parks and buildings."
"Moreover, if the court reverses the 9th Circuit's decision on the ground
that Buono did not have standing to bring his Establishment Clause claim, then
in the future other citizens across the country might find it more difficult
to bring similar lawsuits in federal court. The court could limit such a lack
of standing to people who claim to be offended specifically by the
government's preference for some religious displays over others, or the court
might go further and rule that people who generally object to public religious
displays lack standing."
"The case also might provide a significant indication of how the Supreme
Court's newest member, Justice Sonia Sotomayor, views church-state issues. She
has replaced Justice David Souter, who was widely considered to be the high
court's most ardent supporter of church-state separation. Sotomayor's position
on this case thus might provide some insight into the direction of
church-state law under the newly constituted Supreme Court."
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Jesse Merriam, "In brief: Salazar v. Buono," The Pew Forum,
- A transcript of the oral arguments before the Supreme Court on 2009-OCT-07
is available at:
This is a PDF file.
- "Humanists Weigh in on Supreme Court Case Salazar v. Buono," American
Humanist Association, 2009-OCT-07, at:
- Robert Marus, "Supreme Court gets technical in arguments on Mojave cross,"
Associated Baptist Press, at:
- Kim Trobee, "Mojave Cross Case Heard at Supreme Court," CitizenLink, Focus
on the Family Action, 2009-OCT-07, at:
Copyright © 2001 to 2010 by Ontario Consultants on Religious Tolerance
Latest update: 2010-MAY-23
Author: B.A. Robinson