April 28, 2010
Supreme Court Sends Cross Case Back
The Supreme Court ruled 5-4 Wednesday that the much-debated war memorial cross in Mojave National Preserve may remain because Congress' attempted transfer of the plot of land to private hands would resolve any constitutional concerns.
Unsurprisingly, the Court did not directly address the bigger Establishment Clause question of religious symbols on public land, instead ordering a lower court to reassess its challenge to the land transfer solution.
CT previously asked experts to weigh in on the case here.
Update: Carl Esbeck tells CT that today's Supreme Court ruling on the Mojave cross is more newsworthy to evangelical church-state watchers than most media have portrayed.
Esbeck, professor of law at the University of Missouri, explains that Justice Anthony Kennedy sent the case back to the district court for additional fact-finding on whether Congress’ purpose in ordering the land swap was religious or secular, i.e. an evasion of the trial court's injunction or an accommodation to those wanting to preserve a war memorial. But Esbeck believes that Kennedy actually says quite a lot about how he thinks a court majority—and hence the Establishment Clause—should handle this kind of religious symbol on government property case.
“It would be a shame for evangelicals to think nothing has changed,” said Esbeck. “The way this will be spun is ‘everything was murky and unclear before, and everything is still murky and unclear.’ That is a way of covering up the loss, because the ACLU victory below was reversed. Are things crystal clear? No. But the ball has moved towards religious symbols on government property not violating the Establishment Clause, and now we know where [Chief Justice John] Roberts and [Justice Samuel] Alito—who are new to the Court—stand.”
“Press releases from the usual crowd probably overstate the scope of the opinion,” said Esbeck. “But it would be wrong to just say this case was not a loss for the ACLU. Kennedy has language that says of course the Roman cross is a Christian cross, but symbols can have multiple meanings, and it is clear in this case that the 70-year-old cross has taken on the message of a war memorial. This language will help the briefs of ACLJ, ADF, etc. And Roberts and Alito signed on to this language in Kennedy’s opinion. Further, Kennedy has never been so forthright on these Establishment issues.”
Esbeck says debate will now shift to whether the congressional purpose in swapping land was religious or not. The case could potentially go all the way back up to the Ninth Circuit and maybe the Supreme Court again, though this process will take years.
The ruling may improve of the odds of religious symbols remaining in public spaces, but Esbeck sees the justifications cited as a mixed blessing.
“I’m not a big fan of religious symbols on government property,” said Esbeck. “I believe there is a detriment because it dilutes the real purpose of the symbol. They’ve taken a symbol of the church and turned it into civil religion. This can be bad for evangelicals because when people look at a nativity scene or a Roman cross, we want people to think of the God of the Bible. If these too become simply civil religion to Americans, it makes the task of evangelism harder for Christians.”