Political Science

In his article Religion Largely Absent in Argument About Cross which was published in the October 8, 2009 issue of The New York Times, Adam Liptak reports on the controversy involving the use of a cross to honor the memory of soldiers who have died in wars. An organization called the Veterans of Foreign Wars erected the memorial as early as the 1930s inside the Mojave National Preserve located in the southeastern portion of the state of California. However, it was only about ten years ago that a serious objection against the use of the cross as a war memorial was registered (Liptak).

A retired National Park Service employee, Frank Buono, claimed that the construction of the war memorial on government land represented a violation of the Constitution of the United States. Although he considers himself a Roman Catholic, Buono contended that when the government allowed the display of a permanent religious symbol on government land, such as the cross, it violated the establishment clause of the First Amendment. In other words, when Buono filed a case against the government, his main argument was that by allowing such a memorial to be erected on a piece of land that it owned, its action was tantamount to the establishment of Christianity as the favored or even the official religion in the country (Liptak). In essence, according to Buono, the government ignored the First Amendment provision which orders Congress to make no law respecting an establishment of religion (Cornell University Law School). In 2002, a California federal court issued a ruling in his favor and therewith ordered the United States government to remove the cross. The government elevated the case to the Court of Appeals for the Ninth Circuit. However, in 2004, the appellate court came out with a ruling affirming the lower courts decision. Thereafter, the federal courts ordered a stop to the display of the cross (Liptak).

In the face of these reversals, government decided not to pursue the case all the way to the Supreme Court. Instead, it came up with its counter-arguments through the actions of the United States Congress. First, Congress passed a law which designated the cross as a national memorial. As such, the provisions of that law prohibited anybody from removing it.  In addition, Congress issued an order to have the land where the cross was erected transferred to private ownership. Observers believed that the actions of Congress were meant to prevent the removal of the cross from the Mojave National Preserve. The argument of government was that if the land where the cross was erected would no longer be a property of the United States government, leaving the memorial intact would no longer violate the establishment clause of the First Amendment (Liptak).

The problem persisted for years with the government insisting that the memorial be left intact and the federal courts standing by their decisions to have it removed. The issue was finally put before the United States Supreme Court. In a petition, Secretary of the Interior Ken Salazar asked the Court Whether an individual has Article III standing to bring an Establishment Clause suit challenging the display of a religious symbol on government land and if an Act of Congress directing the land be transferred to a private entity is a permissible accommodation (Salazar v. Buono, 08-472). Simply stated, the Secretary of the Interior asked the Supreme Court to clarify if Buono was within his rights when he filed a case against the government questioning the construction of the cross on government property. In addition, he also inquired of the Court whether the action of Congress in simply transferring the ownership of the land where the cross was erected from public to private ownership enough to prevent the government from violating the First Amendment.

When the case (Salazar v. Buono) was argued before the Supreme Court, one of the issues tackled was whether the action of Congress transferring ownership of the land where the cross was erected in fact represented a violation of the original decisions of the federal courts (California federal court 2002 and Court of Appeals for the Ninth Circuit 2004) ordering the removal of the cross. An exchange of arguments ensued between the lawyers of Buono and the justices of the Court. Peter J. Eliasberg, a lawyer from the American Civil Liberties Union who argued in behalf of Frank Buono, referred to the memorial as pro-Christians and anti-Jewish. According to him, it would not only be improper but would also go against Jewish beliefs to honor Jewish veterans with a memorial such as a cross which is a predominant symbol of Christianity and signifies that Jesus is the son of God and died to redeem mankind for our sins. Because of this, Eliasberg said that nobody could ever see any cross on Jewish tombstones (Liptak).

In effect, he was telling the Court that since the war veterans being honored by the memorial erected by the Veterans of Foreign Wars included Jewish war veterans, the cross would have to go so as not to offend the Jewish Americans. Justice Antonin Scalia defended the presence of the cross by saying that it is the most common symbol of the resting place of the dead and that a cross should not be interpreted to mean that only Christian war veterans are being memorialized by its presence. For his part, Chief Justice John G. Roberts, Jr., explained that the cross was, as a matter of fact, not a government-sponsored memorial. Therefore, what he was saying was that the United States government did not actually violate the First Amendment. To support his argument, he read the actual text of the plaque which accompanied the cross The cross, erected in memory of the dead of all wars, erected 1934 by members of Veterans of Foreign Wars, Death Valley Post 2884. Evidently, therefore, Chief Justice Roberts said, the memorial was not prepared by the United States government in violation of the First Amendment but by an organization of war veterans to honor their fallen comrades (Liptak).

There is only one provision in the Constitution which could be cited in connection with the issue at hand. It is the First Amendment which specifically states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof (Cornell University Law School). This provision is commonly interpreted to mean that while government is not allowed to prohibit the existence of any religious organizations in the country, it is likewise prohibited from giving special treatment to any particular religious organization, or from establishing an official religion for the whole country. In other words, all religious organizations should be treated equally under the Constitution.

In connection with the issue at hand, a cross as a memorial for war veterans could be considered a violation of this amendment - as Frank Buono correctly pointed out - if, first, the memorial stands on a government land and, second, if the memorial is an official undertaking of the government. When the land on which the cross was erected was transferred to private ownership, the issue concerning the First Amendment became moot and academic - in spite of the fact that the act of Congress authorizing such transfer came after federal court decisions to have the cross removed. This is because the United States Congress acted within its authority when it passed the law ordering the transfer of ownership. Second, when the memorial was shown to have been accompanied by a plaque which showed that the memorial was actually a project of an organization of war veterans and not of the government itself, the claim of First Amendment violation has been further nullified. In view of these considerations, the cross should be allowed to remain as a memorial to war veterans. In light of this, if the government really wants to be fair to everyone, it should also transfer plots of land to other religious organizations so that they, too, could erect their own symbols.

If, on the other hand, the government insists on preserving the memorial on government land, it should only be proper that other symbols representing other religious denominations be allowed to be erected on the same site also. This is a compromise which is not only prudent but could also prevent government violation of the establishment clause of the First Amendment.