1934 - VFW erects cross at Sunrise Rock to honor dead Americans from WWI on federal land without permission
- retired park serviceman (Buono) goes to ACLU (he's a Catholic AND a veteran but finds it troubling to have this particular symbol on federal lands)
- Park Service agrees to remove cross
- Congress steps in
- ACLU represents Buono
- two lower courts rule that the "existence of the cross itself on public land amounted to the government endorsing one religious view - and therefore it violated the Constitution's ban on establishment of religion"
- Congress passes a law that grants land to VFW and mandates that cross be maintained or ownership will revert back to the government
- said cross is designated as one of the nation's 45 national memorials (along with the Lincoln Memorial, the Washington Monument and Mount Rushmore)
- lower courts rule land transfer was an unconstitutional end-run that "perpetuated the government's endorsement of a religious symbol"
- government appealed to the Supreme Court
UPDATE: This just in from the SCOTUS blog:
Haggling over what issues are actually before them, the Supreme Court Justices on Wednesday turned a major case on the constitutionality of religious monuments on government property into what seemed like a mere shadow of its former self. As the case of Salazar v. Buono (08-472) reached the Court, it looked like a significant new test of such displays, of who could challenge them, and of how the government could react if told to take them down. But, after an hour of oral argument, only the last of those was still in play, and it appeared to have been pared down to its specific facts, with few if any wider implications.
The case of the Christian cross standing alone in the midst of a huge federal land preserve in a California desert put before the Court the latest in a continuing series of controversies over religion commemoration in public places. Lower federal courts had found the cross’s presence there unconstitutional, and barred enforcement of an attempt by Congress in 2004 to shift ownership of the site into private hands in a bid to save the cross. The federal government took the case to the Supreme Court to protest those rulings.
Despite strenuous efforts by Justice Antonin Scalia to keep alive the core question of whether the cross display was a violation of the Constitution’s Establishment Clause, the dominant sentiment on the bench seemed to be that that was no longer open to review. And despite efforts by U.S. Solicitor General Elena Kagan to get the Court to focus on whether a former park service officer had any right to sue to test the display, that, too, seemed to be beyond the Court’s reach. Kagan, in fact, had to endure lectures by several of the Justices that the government should have tested that question earlier in the case, so had now missed its chance.
The Solicitor General, and a California civil liberties lawyer on the other side, Peter J. Eliasberg, found themselves compelled to pore over the details of Congress’s response to the lower court rulings, rather than arguing broad constitutional principles. The effect was to significantly shrink even the remaining issue in the case.
Kagan insisted that those details showed that Congress only wanted to keep a “war memorial” on the site, which only incidentally was a religious symbol, so there was no basis for blocking the land transfer. Eliasberg countered that those details showed that Congress had singled out a single religious faith for favoritism, gave that cross a monumental status that few other iconic structures get, did not actually forfeit its interest in keeping the Mojave cross standing on Sunrise Rock, and thus remained in a continung constitutional violation.
The law sure is some tricky sh*t.
4 comments:
Whilt this grinds its now-narrowed way through the SCOTUS, and knowing your (collective, I believe) incredulity at the "birther" folks, I give you this:
http://tinyurl.com/birther-dds-esq
Oy, vey, Maria!
"Simply being 'offended' is not enough to create a constitutional showdown." write the ACLJ. In their brief, the ACLJ maintain that this challenge has no place in federal court, and that people who are offended by government speech or displays should not be permitted to use the Establishment Clause to seek relief in federal court.
Also, the cross does not objectively coerce participation in a religious exercise or activity, ergo, not establishment. Again.
That's what the ACLJ is arguing but the issue hasn't been decided yet. The underlying question? What kind of harm must a person show before being allowed to seek redress in court? Buono was a veteran and was offended. But not solely at the presence of the cross. He was offended that the cross was on public land but that others were denied permission to erect other displays.
The court also must consider if Congress' acts to "save" the cross (no pun intended) were merely a way to circumvent the lower courts' decisions. (If it was, is that legal?) Buono's lawyers contend that the Court's precedent only require evidence of "direct and unwelcome contact with a government-sponsored religious display or practice," which are Buono's objection and injury. The court may not allow the issue of standing to be reviewed at this date because it (apparently) was not brought up earlier. Also, they seem reluctant to make a decision that would effectively end all types of these suits.
The Establishment Clause says nothing about "objectively coercing participation in a religious exercise or activity." It says the government can't make any law "respecting an establishment of religion." This clause not only forbids the gov't from establishing one religion but also from acting in such a way that favors one religion over another, which is exactly what they are doing in this instance.
Bruce,
I've seen this lady before (from you, perhaps?). Oy vey indeed.
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