My Cross to Bear

The Supreme Court held oral argument on yet another case having to do with religious symbols on public land. I hate this line of cases so much, mostly because I hold both of these thoughts:

1. Religious displays on public property are clearly unconstitutional.
2. I do not give a shit if the town council sticks a Nativity scene in the middle of the Winter Carnival.

The former probably owes something to being an atheist. The latter, probably, because strident, inevitably smug, atheists annoy me almost as much as proselytizing for faith does. The whole thing leads me to sigh whenever another one of these cases comes up. It must be exhausting to be offended all the time by your neighbors being themselves in public and it doesn't get less exhausting to spend all that time fanning one's self with the Constitution.

On the other hand, the only thing more exhausting in all of these cases is the disingenuous contortions that the supporters of these public displays have to make in order to justify them under the First Amendment. Santa isn't really a religious figure; the Christmas Tree is a secular symbol; Christmas itself is a "seasonal" reference. In all of this, Scalia is rare among the supporters of these public displays in that he finds these arguments preposterous – as much an insult to faith as it is to the First Amendment. On the other hand, Scalia doesn't think that religious displays on public property raise any constitutional question at all, so you have to take the good with the bad. Or, at least, you used to. Now it's all bad.

During Wednesday's oral argument on the latest of these cases, Salazar v. Buono, Scalia didn't see what the big deal was about having an 8-foot tall cross as a World War I memorial on the Mojave National Preserve, as reported in Slate:

Justice Antonin Scalia: "The cross doesn't honor non-Christians who fought in the war?"

Counsel for Respondent, Peter Eliasberg: "A cross is the predominant symbol of Christianity, and it signifies that Jesus is the son of God and died to redeem mankind for our sins."

AS: "It's erected as a war memorial! I assume it is erected in honor of all of the war dead. The cross is the most common symbol of … of … of the resting place of the dead."

PE: "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."

AS: "I don't think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead. I think that's an outrageous conclusion!"

So now you can't even count on Scalia to admit that religious symbols are, in fact, religious. Scalia's stance is the kind of position that could only be taken by a man who ascribes to the dominant faith in his society and still manages to feel oppressed. That he could assert with a straight face that the ubiquity of crosses on gravestones, in a country where Christians are ubiquitous, has become a universal symbol beggars belief. And he didn't just say it with a straight face. I omitted Slate's descriptors of Scalia's tone so the colloquy would read neutrally, but they were "stunned" and "thundered." He was not only serious that a Jew (or Muslim or atheist) should feel honored by a cross, he was offended that they wouldn't be.

Where this case will end up is anyone's guess right now because, as usual, the specific facts of this case involve a delicate dance around the Constitution. After a District Court ruled that the display was a violation of the Establishment Clause and issued an injunction, Congress hastily transferred a tiny parcel of land – more or less the ground underneath the cross – to a local VFW. Nevermind that this 'private land' still sits smack in the middle of a national park. The 9th Circuit, of course, minded this little legerdemain and so it kept the injunction in effect. There is a separate fight over standing, a third fight over which injunction the Court is supposed to be considering… All in all it is a bit of a clusterfuck, as happens a handful of times each term.

Even if they never reach the Establishment Clause question on this case, the oral argument will stand as a more prominent monument to Justice Scalia's blinders more prominently than the Mojave Cross ever stood for anything.

Last 5 posts by Charles


  1. says

    That guy really does make everything up as he goes along, doesn't he? To him, the world is (or should be) made up exclusively of pudgy Italian-American christians of a certain age, wealth and social standing. Anyone else has no complaint to make.

  2. Matt Howard says

    He's Catholic. He's viewing cases through the lens of his experience and beliefs, just as Sotomayor said she would do. With two-thirds of the Court now Catholic, we can expect an end to Church-State separation.

  3. TomH says

    I can't wait to hear what they say about the cross now being on private property, and if valid, the future conveyances of 5 to 10 square feet of lawn outside town halls across the nation.

    Heck, it's not unconstitutional to SEE a religious display from public property or put one up adjacent to public property. What is the Court to rule, the conveyance was improper because – – well, that's cheating. It messes everything up when a private property owner can do what they want. That's just not right.

    But like Charles, I could care less about these things, except to get all entertained and inclined to incite argument when people get all worked up about it. Also, the insistence of government officials to proselytize is amazing to me. Is this an appropriate use of public funds? Is the public option creche the only solution?

  4. Dustin says

    In response to TomH's point above, I think one can make a ruling baring the transfer of land that doesn't stop private land owners from doing whatever sort of displays they want. The court coud find that it was unconstitutional for Congress to make that particular transfer since its purpose is very obviously to allow a religious display to be put up on what would otherwise be public land. It's similar to the 'moment of silence' in school case. It is not unconstitutional for a school to observe a moment of silence in general. However, it has been ruled to be unconstitutional if the obvious goal was to institute prayer in school.

  5. Charles says

    TomH, I don't even know if the conveyance issue is properly presented, since the conveyance isn't irrevocable. If the VFW fails to properly maintain the land, it reverts back to the government.

  6. Old Geezer says

    I trust Scalia will support my plan to erect a swastika on government land as a memorial to all those Americans who died in WWII? It was, after all, somewhat of a "universal symbol" of it's time in some parts of the war world.

  7. Patrick says

    I lost all faith in Scalia as the principled justice who actually approaches Roberts' specious example of an umpire, calling em as he sees em regardless of his sympathies, when he concurred with the majority in Gonzales v. Raich, the California medical marijuana case.

    If ever a Justice's avowed principles called for a result contrary to sympathy, it was Scalia in Raich. Scalia's concurrence boiled down to "I just don't like filthy hippies and their marijuana, so I'll disregard my history and my record."

  8. astonied says

    Yep its time to draw the names out of a big bingo cage and they become a justice. Same with President.

  9. Fred Z says

    You take something as a given that I have never been able to accept: "1. Religious displays on public property are clearly unconstitutional."

    So a private citizen cannot wander around a park on a sunny summer day with a religious statue or religious placard? I hope that is not the law.

    I hope the law is:"1. Religious displays by any governmental authority on public property are clearly unconstitutional."

  10. the friendly grizzly says

    Scalia is first, last, and all through, Roman Catholic first and a Constitutionalist somewhere way down the line. He is everything Robert Bork would have been.

  11. says

    Scalia is the epitome of the “what I am accustomed to is, by definition, neutral” mindset.
    … or normal, natural, unexceptionable, sure. Bugs the heck out of me, when I notice — as I did, say, in that bad paragraph in Heller.

    As to "religious displays on public property," my own sense is that they should be regulated in the same way that any other expression of protected behavior is. I certainly should have the right to walk around on public property sporting an "Obama Was Born in Kenya" t-shirt (no, I don't think he was), or one expressing my own religious position "I'm a relaxed agnostic; chill — you'll know soon enough," and figure that ought to apply to other folks, too.

    But should I get to put up the symbol of relaxed agnosticism (a shrugging question mark) next to the cross in question? I'd say no, as the cross oughtn't be there, either.

  12. says

    Fred Z., you are being a bit pedantic for my tastes but I'll concede the point. I don't think that a guy with a Jesus fish on his car needs to be kept out of the Yellowstone parking lot to preserve the First Amendment.

  13. Al says

    Welcome to San Diego, where we've been dealing with a similar issue surrounding the "Mt. Soledad Veterans Memorial Cross" since 1988. Of course we will not be outdone by San frickin' Bernradino so our levels of disingenuousness absolutely towers over just about anyone else's when it comes to our cross. In this case the "Mt. Soledad Veterans Memorial Cross" wasn't actually called that until 1988 when, coincidentally I'm sure, someone wondered why a giant cross was on state owned land.

    Prior to this the cross was known as the "Mt. Soledad Easter Cross."

  14. E-Bell says

    You know what the problem with these establishment clause cases is?

    They're petty. No one is actually harmed by a nativity scene in a public park, much less a cross erected in the middle of the freakin' desert.

    The plaintiffs in these cases are invariably a minority so distinct that the communities they live in probably don't know they're there. I mean, you don't see a bunch of New York Jews or Dearborn, MI Muslims bringing these suits. No, no, those folks might actually have a legitimate gripe that needs addressing.

    Instead, It's always some wacky lone atheist with no real community presence who wants to make a name for himself by challenging a venerated institution. Seriously, does having "In God We Trust" printed on our money *really* harm Michael Newdow?

  15. says

    E-Bell, despite working to be a Christian myself, I am offended by government sponsorship of religion. I'm not all butthurt offended, but I don't like it. And even if the harm to individuals is minimal, there is a harm — that to the rule of law. I don't like nodding and winking at constitutional violations because they are relatively harmless — it sets a bad precedent.

  16. Charles says

    E-Bell, the pettiness of the plaintiffs is matched by the feigned surprise of the defendants and their allies. The Mojave Cross is not a stand-alone case. Monuments to Christendom like it are planted all over the country in violation of the law, and they have to be challenged one at a time. And yet the planters get offended at each individual challenge.

    I don't believe in God, so I don't know who the "God" or the "We" is on my money. Would I get out of bed to file a lawsuit to remove the change it? No, but I wouldn't mind if it were changed at all.

  17. E-Bell says

    Ken, you and Charles make a good point with regard to the rule of law and upholding the Constitution, but every little slight doesn't demand protracted litigation, using up who-knows-how-many hours of court time to resolve.

    There are tons of greater harms out there that don't get a smidgen of the attention that these cases get. How many folks get wrongfully arrested, spend the night in jail and are then released without charges – but never sue, much less argue their cases to the Supreme Court?

    I just think there's a better use for society's resources.

  18. Charles says

    I couldn't agree more, E-Bell. So just have the government take down the monuments and we're done!

    The reason the cases are protracted is because the governments don't say "Our bad!" Instead, they argue "it isn't religious"; "it isn't our land"; "the Establishment Clause doesn't apply to states/local government"; "the Establishment Clause only refers to a State Religion"; "we've recontextualized the religious monument by placing it alongside other monuments"; etc. The plaintiffs typically set forth a pretty straightforward case: (1) This is public property; (2) that is a religious symbol. It is the defense papers that are complicated and abstruse.

    Either the litigation is protracted or the offensive monument's presence is.

  19. PLW says

    Also, I'd expect that large minorities often have more strength in the other branches of government and therefore needn't work through the judiciary as frequently.

  20. says

    Scalia is right, as usual. The cross is a symbol for death above and beyond its religious significance. There's plenty of evidence for it in both real life and on the Web.

    The absurdity of arguing against Scalia on this is easy to illustrate. Pick any memorial shape. I'll start a religion and make that the symbol of my religion. Poof! Instantly I have removed the religious neutrality of the symbol.

  21. says

    Your analogy makes no sense, Bryan. The cross is not a "memorial shape" that became "the symbol of a religion." The cross is a shape that, because of the centrality of the crucifixion to Christianity, became a symbol for memorializing the dead to Christians.

    The only people who think that the cross is a catch-all symbol of death are Christians who aren't in touch with their roots.

  22. Patrick says

    Bryan, the cross may be a symbol of death, but it's primarily a symbol of the hope for resurrection after death through the boundless grace of Jesus Christ. That there may be some person out there who recognizes the cross as a death symbol, without being aware that the symbol is tied to the Christian religion, is conceivable but unlikely. You could argue, I suppose, that the cross was a death symbol before Christ's crucifixion by virtue of the Roman method of execution, but the Romans did not use it as a universal symbol for that purpose, nor did anyone else. All of the cross's cultural significance, as it relates to death, derives from the overwhelming dominance of Christianity as a western and world religion, and the centrality of the crucifixion and resurrection to that religion.

    The law does recognize history, and culture. Scalia's (willful) obtuseness aside, everyone on earth knows that the cross is primarily a Christian symbol of death and grace.

    As for your contention that you could take any symbol and make it religious through your own weirdo invented religion, de minimis non curat lex.

  23. says

    More or less, Al, with various degrees of integrity as there was a plurality (Kennedy/Roberts/Alito), two concurrences (Roberts, Scalia/Thomas and Alito) and two dissents (Stevens/Ginsburg/Sotomayor and Breyer). I'm still going through the opinions, but the Scalia/Thomas concurrence appears to be bullshit on an epic scale.

    The Roberts concurrence is a one-paragraph job based on a spectacularly dunderheaded concession by Bueno's counsel at oral argument and that will need to be dealt with below. The Breyer dissent is based entirely on the procedural posture of the case and ducks the constitutional issues entirely.

  24. Patrick says

    This is a judgment without a holding. The judgment is that this particular cross can stay on this plot of land, and that's all this case stands for.