Under the U.S. Supreme Court: The way of the cross

Aug. 29, 2010 at 3:31 AM
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WASHINGTON, Aug. 29 (UPI) -- What Justice Antonin Scalia calls the Kulturkampf, or culture war, continues to be fought in sweaty federal courtrooms across the United States away from the headlines and the television cameras.

It's difficult for people in Europe and elsewhere to grasp how visceral this war is in the United States. A Gallup poll released in March indicated more than half of Americans believe in creationism, that humans were fully formed in the Garden of Eden less than 10,000 years ago -- effectively brushing aside evolution, and for that matter, genetics, anthropology, geology, paleontology, archaeology and a host of other interwoven scientific disciplines.

To an outsider, the United States would seem to be a seriously divided country, particularly on religious issues.

Nowhere is the culture war more apparent than in battles over religious displays.

The latest skirmish was fought earlier this month in Denver, where a federal appeals court said crosses erected along Utah highways as memorials to fallen Highway Patrol officers were in violation of the First Amendment's ban on the establishment of religion.

The 13 crosses on Utah highways bear the names and badge numbers of the fallen officers, pictures and biographical information and the insignia of the Utah Highway Patrol. Two members of the Utah Highway Patrol Association have organized the placement of monuments on Utah roadsides since 1998. The Christian Science Monitor said the association consults the family of each fallen trooper, and no family has objected to the cross or asked for a different memorial.

"We hold that these memorials have the impermissible effect of conveying to the reasonable observer the message that the state prefers or otherwise endorses a certain religion. They therefore violate the establishment clause of the federal Constitution," the appeals court ruled, the Monitor reported.

Despite arguments from cross supporters that the crosses are no different from those in military cemeteries or those in other roadside memorials at the site of traffic fatalities, the appeals court said the core issue was how the large Utah crosses would be viewed by the public, the Monitor reported.

"We conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity," the appeals court said. "The memorials use the pre-eminent symbol of Christianity."

In its coverage of the case, the Religion News Service reported the Utah challenge could spark a number of similar assaults on religious symbols in other states.

The Becket Fund for Religious Liberty -- which argued in favor of the crosses on behalf of Colorado, Kansas, New Mexico and Oklahoma -- said the case could have repercussions outside Utah, RNS reported.

"In the wake of this decision, any privately erected, religious memorials on government property in those states could be vulnerable to a court challenge," the organization said in a statement, RNS reported.

The Becket Fund also predicted the U.S. Supreme Court would be asked to review the Utah case.

Which begs the question: Is there anything in Supreme Court jurisprudence that would lead observers to conclude the justices would uphold the Denver appeals court?

Not really. If anything, the most recent action by the Supreme Court indicates the appeals court ruling would be shredded by a five-justice conservative majority led by moderate conservative Justice Anthony Kennedy.

Last April, in Salazar vs. Buono, the high court ruled 5-4 in favor of the Mojave Memorial Cross.

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

The latest version of the cross 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 then was forced to transfer the immediate property to the VFW.

That didn't satisfy the lower courts in California, 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 U.S. Interior Department. After the original trial court ruling, the cross was encased in a plywood box as the case played itself out.

The Supreme Court heard the case last October, preceded by a massive array of friend-of-the-court briefs. 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.

Groups -- Jewish, Christian and otherwise -- pledged to the separation of church and state generally supported the challenge to the cross.

The Supreme Court argument was marked by a now-famous exchange between Scalia and American Civil Liberties Union attorney Peter Eliasberg. Scalia, the most vehement defender of the cross from the bench, 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."

Though there was no majority opinion in the case, Kennedy wrote the prevailing opinion and four other justices either joined it or joined the judgment in favor of the cross.

"The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society," Kennedy wrote.

But the justices did send the case back down to the trial court so the ACLU could attack the transfer of the land to private property from a different angle.

In an ironic twist, the Mojave cross was stolen from its perch on Sunrise Rock two weeks after the Supreme Court ruling. The National Park Service says a $125,000 reward is being offered for the arrest and conviction of the thieves.

Some unknown supporters of the cross surreptitiously erected a substitute on Sunrise Rock, but the Park Service said since it wasn't the same cross involved in the court case, it would have to come down. Only the original, now apparently in the hands of thieves, will do.

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