Friday, October 16, 2009

LTG 10/14/09 - Crosses, boxes, and public land

From the Omaha CityWeekly, October 14-20, 2009

Sometimes, the hard work is done for you. If you’re a sports-talk host, just ask about a college football playoff or whether Pete Rose should be in the Hall of Fame and you’ve got a week’s worth of shows done. If you’re a news-talk host, just say “so, abortion, what’s up with that” and you can go on vacation for a week.

And, if you’re a Law-Talking Guy, and the Supreme Court is hearing a case about a cross on government land, you’ve got your topic selection covered. Fortunately, I happen to be a Law-Talking Guy, so let’s talk Establishment Clause.

The latest kerfuffle started back in 1934, when a five-foot white cross was put on a remote hilltop in the Mojave Desert by the Veterans of Foreign Wars (VFW) to commemorate fallen soldiers in World War I. Unfortunately, that remote hilltop happened to be in the Mojave National Preserve in California, and owned by the Federal government. The VFW never asked for permission to put the cross up, but the Feds have allowed it to stand since its’ construction.

It became an issue in 2001, when a Buddhist park employee filed a lawsuit because the presence of a cross on federal land offended his view of the Constitution. The lower courts have consistently found the presence of the cross to be an impermissible violation of the Establishment Clause and ordered it removed. The cross is still there, inside (I kid you not) a plywood box concealing it from view pending hearing before the Supreme Court.

Much to the delight, of course, of the worshippers of the small-but-vocal Church Of The Plywood Box.

First, we’ll discuss the basics. The Establishment Clause of the First Amendment prohibits the government from, well, establishing a national religion. Through the years and interpretations of the Supreme Court, this has come to mean that the government can show neither favoritism nor hostility towards any particular religion.

In general, this has meant that religious displays on public property are only permissible when displays of all faiths can be displayed. A cross is allowed on public property, but only if a menorah and a Buddha would also be allowed. No Buddha, no cross.

This case, however, has two interesting wrinkles that will decide the case on grounds other than the big Establishment Clause issue. The first is standing, which in law does not mean what your team’s record is in comparison to other teams (like, say, Nebraska’s 1-0 Big XII record as opposed to Missouri’s 0-1, to pick a random and not at all personally pleasing example).

In law, to have standing means you have the right to file a suit in court. Generally speaking, you have to have a specific personal interest in a matter before you file a lawsuit. So, for example, someone might think that the grapevine growing on my fence is clearly over the boundary line and interfering with my neighbor’s right to enjoy his property. But only my neighbor would have standing to bring a lawsuit to make me move my grapevine, because my neighbor is the only one who is personally affected.

The question in this case is whether someone’s “understanding of the Constitution” being offended is sufficient standing to challenge a public display of religion on public property, or whether a person has to prove their religious beliefs were actually offended by the public display.

Yes, that’s actually the question. And no, there is no “offense-ometer” you can be hooked up to measure your level of offense. At least not yet.

The other question revolves around a bit of legal trickeration pulled by the government. When the issue of the cross came up, the government tried to lease the one-acre square of land to the VFW. By doing so, the clever government lawyers thought they’d be able to argue that the land wasn’t public property any more and therefore the Establishment Clause wouldn’t apply.

Of course, the one-acre postage stamp where the cross sits is still smack dab in the middle of the Mojave National Preserve. And, amazingly enough, there are no big signs or anything else saying the land is private. All you have is the cross itself, on an island of “private” property, still looking to the world like a cross on government land.

Not surprisingly, the trickeration hasn’t worked up to this point. The lower courts have consistently held that there is still an appearance of endorsement of one particular religion, which is not allowed by the Establishment Clause. I have yet to find an opinion referring to the land transfer as a “trave-sham-ockery,” but I believe that is the technical term which would most accurately apply.

Of all the cases in this year’s Supreme Court docket, this one is one of the sexier ones because of the issues involved. Unfortunately for most non-Law-Talking Guy coverage of the case, I think the case will ultimately be decided by the standing issue. My guess is that the Court will use this case to limit Constitutional challenges to public displays of religion to people whose religious beliefs are actually offended by the display.

Consider this a heads-up, then. Invest heavily in the “offense-ometer” manufacturing sector. They’re going to make a killing in the years to come.


Brian Lockwood said...

Well, Law-Talking Guy, I respectfully submit that you totally miss the point. "Standing" is certainly an easy escape route. But I think the Court will actually decide this one on the merits, and I would not be surprised to see T. Jefferson's letter to the Danbury Baptists finally removed from the Constitution. The issue is not the cross, per se, but the memorial component of it. To cause removal would require removal of crosses from other areas, such as National Cemetaries. Consider, for the moment, that the Ten Commandments sit on the Nebraska State House, proudly (perhaps defiantly) facing south, for all to see. At a certain point, a memorial, albeit offensive to 0.000001% of the population, becomes to timeless and inveterate that it must be permitted to stand.

Finally, I think we need to totally rethink the jurisprudence of the establishment clause as it relates to the national (okay, coastal) obsession with political correctness. There is no separation of church and state, and you know that. The prohibition against establishment is not even remotely brushed by an 80 year old monument in the middle of nowhere. The idea that 1% of the population can dictate the behavior of the other 99% is absurd, and the sooner we realize that, the better.

Law-Talking Guy said...

Thanks for reading the article, Brian, and for posting a comment. I would respectfully suggest, however, that this particular cross has nothing to do with a national cemetary. At a national cemetary (like Arlington), the families of the deceased get to choose what (if any) religious symbols adorn the graves of their loved ones. Thus, you'll see plenty of symbols other than crosses.

And that's the point. The First Amendment says that Congress shall pass no law regarding the establishment of a religion. That means the government can't play favorites. If they allow a cross, they have to allow a star of David or any other similar symbol. Here, the government allowed the cross to stay, but prevented any other religious symbols from being erected. I struggle to see how that is not the government picking sides on religion.

As a Lutheran, I can tell you that I don't want the government having any business in religion. The whole point of a free society is that we are a government of the people, by the people, and for the people. That means ALL the people, including the 23 percent of Americans who are not Christian.

Let me ask you this rhetorical question. Let's dive straight in to the deep end of the crazy pool and assume Barack Obama is a Muslim. Let's further pretend that he got a law passed requiring a display in all Federal courthouses quoting Holy Qu'ran passages about justice.

You, I suspect, would be incandescently upset about that. And you'd have a right to be. But why should a different rule apply to something like the Ten Commandments?

One of the things I admire about the founders of this republic is how they understood the concept of "the tyranny of the majority." Much of the Bill of Rights was passed to ensure that the rights of those who are not in the majority are protected. Coming from a group that truly did feel the lash of an oppressive government, the founders recognized the need to limit the authority of government and provide protection and empowerment to the under-privileged and under-represented.

The faithful in general, and we Christians in particular, have plenty of freedom and space to express our beliefs. We do not need to use the power of government to enforce our beliefs on those Americans who do not share them.

Thanks again for reading the column and for taking the time to comment. I appreciate the time and the dialog.