When A Leaf Turns

As Mein Zy so kindly pointed out over at my other blog, the actual case before the SCOTUS is whether the end run around the Constitution attempted by Congress is valid or not. I knew that as a basic idea, but I hadn’t really explored it in depth. Allow me to do so here. Just so we can be a little bit more clear about what we’re talking about here is a basic time-line of events (shamelessly stolen from Stanislaus Skeptics…blame them if it’s wrong*):

• 1934: A cross was erected as a WWI memorial by the Barstow VFW Post 385 with a sign that reportedly said, “The Cross. Erected in memory of the dead of all wars”. At the time the land was managed by the Bureau of Land Management (BLM)
• 1934-1984: The memorial (probably several different crosses during this time) was cared for by John Bembry (a veteran) until his death. The original cross and sign were eventually torn down. The cross was occasionally replaced and repaired. The cross has been the site of Easter sunrise services nearly every year since it was erected and is the site of the Mojave Cross Christian Church.
• 1984-1994: At the request of Mr. Bembry, Henry Sandoz (who is not a veteran) agreed to take over care of the memorial; it is not clear if the memorial was in continuous existence during this time.
• 1994: The site of the cross became part of the 1.6 million acre Mojave National Preserve administered by the National Park Service (NPS); maintenance of the site became the task of the NPS.
• 1998: The current cross was built by Mr. Sandoz and bolted and cemented to the rock; there was no communication with, or permission from, the NPS to erect the cross.
• 1999: The NPS denied a request to erect a Buddhist stupa (a hemispherical shrine or monument) near the site. Frank Buono (former deputy superintendent of the Mojave National Preserve and self-professed Catholic) brought the cross and the denial of the Buddhist shrine to the attention of the ACLU. The ACLU contacted the NPS and asked them to remove the cross since it violated the establishment clause of the constitution. The NPS asked Mr. Sandoz to remove the cross; he refused and threatened to put it back if NPS removed it.
• Oct 2000: The NPS sent a letter to the ACLU announcing that it would remove the cross within the next few months.
• Dec 2000: Rep. Jerry Lewis (R-Redlands, CA) added a rider to a House appropriations bill specifying that Federal funds could not be used to move (or remove) the cross.
• March 2001: The ACLU filed a lawsuit (Buono v. Norton) on behalf of Frank Buono seeking removal of the cross.
• July 2002: US District Court (Central District of California) found that the presence of the cross on federal land was in violation of the First Amendment since the “presence of the cross on federal land conveys a message of endorsement of religion” and ordered the cross removed. For the District and Circuit Courts, there was no question of unconstitutional conduct, in part, because the NPS restricted the site to religious symbols of only one religion
• 2003: Rep. Jerry Lewis inserted an amendment to the Defense Appropriations Act to designate the “five-foot tall white cross first erected by the Veterans of Foreign Wars of the United States in 1934 as well as a limited amount of adjoining Preserve property” as a “national memorial commemorating United States participation in World War I and honoring the American veterans of that war”, allocate $10,000 for a plaque, and to exchange 1-acre of the Mojave National Preserve around the cross with a 5-acre private parcel located elsewhere in the preserve. The land exchange would effectively remove the cross from federal land. [Note that the "five-foot tall white cross" that was erected in 1934 no longer existed]
• June 2004: The US 9th Circuit Court of Appeals upheld the 2002 District court decision and declared the cross was in violation of the establishment clause and that “…carving out a tiny parcel of property in the midst of this vast Preserve-like a donut hole with the cross atop of it-will do nothing to minimize the impermissible government endorsement [of a particular religion].”
• April 2005: US District Court (Central District of California) found that the land exchange was a “scam” and “an attempt by the government to evade the permanent injunction enjoining the display of the Latin cross” on federal land.
• February 2009: The US Supreme Court said it would decide on the case (Salazar v. Buono) and will begin hearing arguments in October. Interior Secretary, Ken Salazar will defend the Interior Department’s right to maintain the cross. The ACLU will represent Buono (as they have done previously). Currently the cross is covered by a plywood box.

Of course, we are now waiting on the Supreme Court decision about the land exchange. What a lot of people don’t understand is that it’s not been about the cross being on federal lands for a long time now. That case was won by Buono 8 years ago, and it was a pretty clear win. If the land transfer is found to be constitutional, the property will be considered private and thus will not be on federal lands. In that case the cross can stay because it’s on private property. If on the other hand the land transfer is found to be un-constitutional, then the property will still be considered federally owned, and the cross will have to be torn down since it sits on public property. In either case, the original question of whether a cross can be placed on public property has been decided, and the answer is a clear “NO!”

So why does the land transfer matter? After all the cross is no longer on government lands so it shouldn’t be an issue anymore, right? The problem is that the government is still showing preference for one religion over all others. The government is clearly acting to allow a christian display while rejecting any similar deal for any other religion. The actions necessary to make the display constitutional are unconstitutional for exactly the same reason that the display itself was unconstitutional. In the end the choices are exactly the same: either the government must allow a similar deal for every religion, or it must reject all such deals.

I had kind of hoped to have a more in depth analysis, but I honestly think that it really is just that simple. I can’t think of any additional information that’s really needed.

* Of course I’m kidding. If it’s wrong and I posted it, it’s still my fault for not checking on it’s accuracy myself. Be warned that I did not in fact check it for accuracy. Feel free to insult me mercilessly for that.