The recent Supreme Court decision in the Salazar v. Buono case of the war memorial cross may not be representative of the bench filled by President Obama: The lineup does not bode well for other challenges to religious symbols, such as San Diego's 29-foot cross and war memorial on Mount Soledad.
UPDATE 11/11/12: New cross placed on 1-acre plot in Mojave, not on federal land
UPDATE 6/25/12: Federal Appeals Court Rules Cross Unconstitutional at Mt. Soledad, San Diego - Supreme Court Declines to Consider Case
UPDATE 5/11/10: Cross mysteriously stolen
-- From "Supreme Court overturns objection to cross on public land" by Robert Barnes, Washington Post Staff Writer 4/29/10
A splintered Supreme Court displayed its deep divisions over the separation of church and state . . . with the court's prevailing conservatives signaling a broader openness to the idea that the Constitution does not require the removal of religious symbols from public land.
A 5 to 4 decision by the court overturns a federal judge's objection to a white cross erected more than 75 years ago on a stretch of the Mojave Desert to honor the dead of World War I.
Six justices explained their reasoning in writing, often using stirring rhetoric or emotional images of sacrifice and faith to describe how religion can both honor the nation's dead and divide a pluralistic nation.
The bottom line, Justice Anthony M. Kennedy wrote, is that "the Constitution does not oblige government to avoid any public acknowledgment of religion's role in society." Although joined in full only by Chief Justice John G. Roberts Jr., Kennedy's opinion will be closely parsed as courts across the country consider challenges to religious displays in public settings.
But it is a narrow ruling, offering less guidance for the future than a stark acknowledgment of the fundamental differences between the court's most consistent conservatives and its liberals in drawing the line between government accommodation of religion versus an endorsement of religion.
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From "When Is a Cross a Cross?" by Stanley Fish, New York Times 5/3/10
. . . Notice what this paroxysm of patriotism had done: it has taken the Christianity out of the cross and turned it into an all-purpose means of marking secular achievements. (According to this reasoning the cross should mark the winning of championships in professional sports.) It is one of the ironies of the sequence of cases dealing with religious symbols on public land that those who argue for their lawful presence must first deny them the significance that provokes the desire to put them there in the first place.
It has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them, either by claiming for them a non-religious meaning as Kennedy does here, or, in the case of multiple symbols in a park or in front of a courthouse, by declaring that the fact of many of them means that no one of them is to be taken seriously; they don’t stand for anything sectarian; they stand for diversity. So you save the symbols by leeching the life out of them. The operation is successful, but the patient is dead.
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From "Supremes raise bar for non-Christians 'offended' by faith" by Bob Unruh © 2010 WorldNetDaily 4/28/10
In the majority opinion delivered by Justice Anthony Kennedy, the court said, "The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society."
Kennedy was joined by Chief Justice John Roberts and Samuel Alito. Roberts and Alito filed additional concurring opinions. Antonin Scalia filed a concurring opinion that was joined by Clarence Thomas. Opposing the ruling were John Stevens, Ruth Ginsberg, Sonia Sotomayor and Stephen Breyer.
According to the Alliance Defense Fund, one of the organizations that has worked on the issue, the focal point of the case was whether someone who has suffered no harm but only claims being "offended" can sue to destroy religious references on public monuments and memorials.
"The ACLU and its allies should not be able to demolish war memorials based on the objection of one person who can't seriously claim to have suffered harm from it," said ADF Senior Counsel Jordan Lorence.
"A passive monument acknowledging our nation's religious heritage cannot be interpreted as an establishment of religion," added ADF Senior Counsel Joseph Infranco. "To make that accusation, one must harbor both a hostility to the nation's history and a deep misunderstanding of the First Amendment."
Mathew D. Staver, founder of Liberty Counsel and dean of Liberty University School of Law, said the issue is bigger than a single monument – or even all the monuments.
"If the courts returned to the original understanding of the Constitution, then these First Amendment religion cases would be easy. The next justice on the Supreme Court must be committed to upholding the rule of law and the original intent of the Constitution.”
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