Will the justices walk the way of the cross?

 

WASHINGTON, Nov. 19 (UPI) -- Sometime soon, the U.S. Supreme Court again will be obliged to rule on the constitutionality of a religious symbol on public land.

This term's case involves a cross erected on government land in the Mojave Desert 75 years ago, which has evoked responses from the usual suspects in the ongoing culture war.

A decision should come down in the next month or two. Will the high court allow the cross -- a permanent display as opposed to recurring displays like Nativity scenes or menorah -- to remain on public land, despite arguments it violates separation of church and state?

Is the pope German?

Any decision in the case would arrive in a public atmosphere of charged partisanship, spurred by what the Catholic League calls the "pernicious" influence of "diversity and inclusion."

The original wooden cross and its replacements in the Mojave National Preserve -- 90 percent federally owned -- were erected by the Veterans of Foreign Wars, initially as a memorial to veterans of World War I.

The cross, as it exists now, is 8 feet tall and made out of pipe painted white. The local resident who made it drilled holes in Sunrise Rock without a permit to anchor it. It has been the scene of sunrise Easter services. There is no plaque or sign indicating the cross is a memorial to service members.

In the 1990s, the U.S. Park Service refused to let Buddhists erect a shrine nearby, and said the cross would have to go as well. But Congress stepped in, ordering the service to allow the cross to stay and designating the cross and Sunrise Rock a "national memorial." The agency was forced to transfer the immediate property to the VFW.

That didn't satisfy the lower courts, which said the transfer was a transparent congressional attempt to slide around court rulings in the suit filed by a former Park Service employee against the cross and the U.S. Interior Department. After the original trial court ruling, the cross was encased in a plywood box as the case plays itself out.

The Supreme Court heard the case Oct. 7. Before argument, the high court was fortified by a massive array of friend-of-the-court briefs advising it on how it should rule. Predictably, VFW and American Legion divisions supported the cross. The Boy Scouts of America joined them, plus a long list of conservative organizations, some with Christian associations.

Indiana, Alabama, Alaska, Colorado, Florida, Idaho, Louisiana, Michigan, South Carolina, Texas and Utah also stepped up to support the cross.

Jewish groups and groups, Christian and otherwise, pledged to the separation of church and state generally support the challenge to the cross.

At argument last month, all observers said the Supreme Court was "divided" -- a shorthand court watchers use when they don't know which way the justices will jump.

One exchange in the argument almost universally reported was between conservative Justice Antonin Scalia and American Civil Liberties Union attorney Peter Eliasberg. Scalia, from the bench the most vehement defender of the cross, said the cross was the "most common symbol of the resting place of the dead." Eliasberg responded that would not be true in a Jewish cemetery. Scalia called that an "outrageous conclusion."

Could two reasonable minds be farther apart?

Despite reports of a divided court, an indication of how the court may rule in the Mojave case comes from the decision in last term's Pleasant Grove City vs. Summum.

A columnist for FindLaw said the Pleasant Grove case "will confound free speech and establishment clause jurisprudence (two of the elements of the First Amendment) for years to come." The establishment clause bans government from establishing an official religion and getting in the way of the "free exercise" of religion.

The opinion for the high court -- everyone signed on except for now retired Justice David Souter, who filed a concurrent opinion agreeing with the judgment -- was written by the sometimes inscrutable Justice Samuel Alito.

Alito rediscovered, or at least reinforced, the doctrine of "government speech" when it comes to religion.

The case involved a Ten Commandments monument donated by the Fraternal Order of Eagles in 1971 and placed in a public park in the historic district of Pleasant Grove City, Utah. The historic district includes secular displays, including a wishing well, donated by private citizens.

Trouble arose when the Summum religious group -- founded in 1975 by an individual who claimed contact with mysterious spirits who imparted principles of wisdom -- wanted to donate a monument referring to its beliefs, The Seven Aphorisms, to be placed in the city park. The proposed Summum monument would be as big as the Ten Commandments monument.

The city turned the group down, saying park monuments were restricted to those directly related to the community's history or donated by groups with community ties. Summum filed suit, but a federal trial judge refused to issue an injunction. A federal appeals court in Denver thought differently and ordered the city to erect the Summum monument "forthwith."

The Supreme Court reversed, with Alito saying, "The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to (court) scrutiny under the free speech clause" of the First Amendment.

A government entity "is entitled to say what it wishes," Alito said, citing Supreme Court precedents. A government entity "may exercise this same freedom when it receives private assistance for the purpose of delivering a government-controlled message. … This does not mean that there are no restraints on government speech. For example, government speech must comport with the establishment clause. In addition, public officials' involvement in advocacy may be limited by law, regulation, or practice; and a government entity is ultimately 'accountable to the electorate and the political process for its advocacy.'"

In other words, if you don't like government speech, vote government out of office.

"Permanent monuments displayed on public property typically represent government speech," Alito said in the opinion's syllabus. "Governments have long used monuments to speak to the public. Thus, a government-commissioned and government-financed monument placed on public land constitutes government speech. So, too, are privately financed and donated monuments that the government accepts for public display on government land. While government entities regularly accept privately funded or donated monuments, their general practice has been one of selective receptivity."

The clincher as far as the rest of the court was concerned may have been the specter of weird monuments popping up all over the Mall in Washington.

Alito's opinion cited friends-of-the-court briefs that "governments accept privately funded monuments all the time and thus, this case had the capacity to affect thousands of communities, states, and even the federal government," the FindLaw analysis said.

"The fact is that there are public monuments everywhere, and to create a constitutional right to impose one's own monument on a public space would be to create havoc at all levels of governments. Imagine Summum approaching the federal government and suggesting its monument must be placed on the Mall, right in front of the Washington Monument. Then imagine the plethora of other monuments that would then line the Mall if Summum's request were to be constitutionally required to be granted."

For the high court, even its four liberals, enough said.