Analysis: Intriguing issues about religion

By Lyle Denniston
on Feb 23, 2009 at 5:37 pm

Analysis

The Supreme Court has given itself two choices to resolve a decade-old controversy over a Christian cross that stands on an isolated acre in the desert, amid the vast 1.6 million acres of the Mojave National Preserve in San Bernardino County in southeastern California.  Either one is likely to be of considerable importance, in the ongoing national dispute over placing religious symbols on public property — a dispute that regularly returns to the Court.

The Court can end the controversy by ruling that the only challenger to the cross had no right to file his case. That seems, on the surface, to be a somewhat mundane issue of court procedure. It is, however, a question of deep consequence for those who oppose religious symbols. That’s because the underlying question is: what kind of harm must such an opponent show before being allowed to seek a remedy in court?

Or, the Court can decide whether Congress, stubbornly defending such a religious symbol’s place on public property, can get around the constitutional question by simply transferring the site to a private buyer, thus leaving the symbol intact where it is.  That outcome of the case likely will have wide impact on a variety of statutes and other monuments with religious themes that stand on government property, in cemeteries, parks and elsewhere.  Many tributes to war veterans, for example, use religious imagery.  Several veterans’ groups, in fact, told the Court in this case that “without action by this Court, countless veterans memorials will perish.”

Both of those fundamental questions are at issue in the case of Salazar (Interior Secretary) v. Buono (08-372).  The case involves a 74-year-old war memorial in the form of a Christian cross (several times replaced). It is made of white metal pipes, and stands at about five feet on
Sunrise Rock, a granite outcropping rising from the desert floor.  It is in a remote part of the huge Preserve, but it is clearly visible to those who approach it on a nearby road.  There is nothing near it except rock, weeds and some cactus.

The controversy over its presence there has been an active issue since 1999; several times, Congress has stepped in to save the cross.

Ten years ago, a Utah man, a National Park Service retiree, asked permission to put up a Buddhist shrine near the cross.  The Park Service said no, and indicated it would take down the cross.  The American Civil Liberties Union pressed the Service to do so, but then Congress stepped in amid protests from one of its members and local officials. Ultimately, after several other measures did not succeed, Congress in 2004 ordered a one-acre site including the cross swapped for a five-acre parcel of privately owned land, elsewhere in the Preserve.

That action was taken while the Ninth Circuit Court was considering a case filed by another former Park Service official, Frank Buono, who lives in Oregon but once worked at the Preserve and returns from time to time for visits.  He is a Roman Catholic, and does not object to a cross being on public land.  But he does say he is offended if a cross is allowed on government property, when the site is not open to other displays, including, perhaps, emblems of other religions.

The Interior Secretary – now Ken Salazar, in the new Obama Cabinet — is pursuing the government appeal, continuing the case originally taken to the Court by his predecessor, Secretary Dirk Kempthorne.

The government petition seeks to have Buono’s challenge dismissed, first on the argument that he had no right to sue (no “standing,” in Article III terms).  Bjuono’s claim of injury, it contends, is not a religious problem at all.  Rather, it says, it is an “ideological objection that public lands on which crosses are displayed should also be public fora on which other persons may display other symbols.”

Salazar’s lawyers argue that Buono has only a “policy disagreement,” and the Court has never allowed a lawsuit based on the Constitution’s religious clauses for such a complaint.  Since Buono has no “spiritual stake” in the placement of the cross on national lands, it asserts, he is suffering no injury the courts can remedy.

Buono’s lawyers contend that the Court’s precedents only require evidence of “direct and unwecome contact with a government-sponsored religious display or practice.”  That, they say, is Buono’s objection, and his resulting injury.  It is not an “abstract, generalized objection,” the response contends.

If the Court were to accept the government contention that Buono had no injury, and thus no right to sue, that would be the end of the case.  But, in reaching that conclusion, the Court presumably will make some new law, clarifying the injury component of “standing” to challenge religion in the public square.

If, however, the Court finds Buono was properly allowed into court, it would then decide whether the tactic chosen by Congress — a giveaway, or trade, of a site containing a religious display — cures any constitutional problem.  The Court, in this particular case, however, is not confronted with a simple disposal of the property into private hands.  Even while ordering the transfer, Congress officially designated the one acre plot with the cross as “a national memorial commemorating United States participation in World War I and honoring the American veterans of that war.”

This, according to Buono’s lawyers, brings into play a federal law requiring the National Park Service to regulate national parks, monuments, and reservations, whether on federal or private land.  That is enough to make the cross a continuing object of the government’s care and concern, making its presence still a constitutional problem, his lawyers assert.  “If Congress had wanted to limit the NPS’s jurisdicion to national monuments or memorials on federal lands, it could have done so, as it has done in other stastutes,” they say.

The case will come up for argument some time in the Court’s next Term, starting Oct. 5.