Supreme Court overturns objection to war memorial cross on public land

[Berkut]

It would appear to be a case of apples and oranges. Whomever argued the case in court appears to have done a terrible job of establishing the fact that the cross was not a WWI memorial but was now a place of worship. I can understand your objection if it is a place of worship but that isn't the basis for this case. Going on the premise that it is a WWI memorial explains why a Buddhist Shrine was denied.

Not at all - the Buddhist shrine was denied because the NPS said you were not allowed to place religious symbols on public property. At the same time, they acknowledged that in fact this symbol was in violation, and said they were going to have it removed under the exact same provisions they just denied the Buddhist shrine. This is a perfectly reasonable and consistent position.

THEN Congress got involved. They first added a rider to an appropriations bill stating that no funds could be expended to remove the cross (which some concerned WW1 memorializing person had literally bolted to the rocks), then when that didn't fly, came up with the "land swap" game where they gave the land away.

So presumably someone else could, if they could get Congress to approve it, simply get some more land swapped so they can put up their buddhist shrine as well. Yeah, sure, that could happen.

[Barrister]

In fact, and I know this may come as a huge surprise to you - many religious people actually think that the State should not be playing favorites with religion! I know, crazy, isn't it?

Yes, I do think the American insistence on absolute separation of church and state is crazy.   

[Berkut]

In fact, and I know this may come as a huge surprise to you - many religious people actually think that the State should not be playing favorites with religion! I know, crazy, isn't it?

Yes, I do think the American insistence on absolute separation of church and state is crazy.  

I am not aware that any such insistence exists. Certainly there is not "absolute" separation of church and state in America today.

[DontSayBanana]

I'm with the Roberts/Kennedy opinion, actually.  The cross was not erected specifically by the federal government, and the government is not bound to render any public discussion of religion taboo.  I'm of the opinion the free exercise clause trumps the establishment clause here, as governmental suppression would be greater interference in religious affairs than simple acknowledgement.

[Berkut]

The purpose of the land swap is to resolve the problem created when the National Park Service allowed the vets to put up the cross originally.  The land is of equal value, so the US public does not lose anything. 

But the issue is not about land value, so whether the public loses value or not is immaterial. Indeed, I don't think the cross lowers the land value to begin with.

The issue is whether the state should allow religious symbols on public land, or more generally, whether allowing religious symbols on public land violates the provisions against the state "establishing" religion.

If in fact it is the case that allowing this cross on public land is tantamount to an establishment of religion such that it is in fact a violation, the government selling/giving away/swapping the land for the purpose of allowing the cross to stay where it should never have been placed to begin with is also a violation of that clause, since it has the identical practical effect.

And the reasoning is very straightforward - allowing a cross is giving preference to one religion over another (since you are not going to allow other religious symbols). And making the land swap is also showing preference, since presumably such land swaps, approved by Congressional act, are not going to be made for any and all other religions. It places the issue of what religious symbols can be placed on public land, in every practical sense, in the hands of politicians. Those that are politically palatable will be defended (as this one was) and those that are not will go nowhere.

Is it significant? Probably not - there doesn't seem to be any continuing problem, although I certainly could see this as being a rather disturbing precedent. Maybe that nutbar fanatic judge can get the state of Alabama to sell enough space in his courtroom to some local group so they can place his giant ten commandments plaque back in there. See, it isn't public property anymore, so anything is a-ok!

The cross stays, legally, so the people who put it up and maintain it lose nothing.  It is a win-win, except for those who think that somehow crosses must be destroyed for some reason.  There isn't a constitutional issue in the land swap, as the court has found.  the issue was with the cross on public property, which is what the land swap took care of.

That seems to me to be a very reasonable position for the Court to take.  If a problem can be resolved to the satisfaction of all actual parties and without violating the constitution, why object to that resolution?
[/quote]

[Berkut]

I'm with the Roberts/Kennedy opinion, actually.  The cross was not erected specifically by the federal government, and the government is not bound to render any public discussion of religion taboo.  I'm of the opinion the free exercise clause trumps the establishment clause here, as governmental suppression would be greater interference in religious affairs than simple acknowledgement.

I think that is a vastly better argument than the idea that you can dance around Establishment restrictions by just giving away custom fitted chunks of public land to chosen groups for them to maintain their religious icons.

Roberts is basically saying, as  far as I can tell, that this simply does not rise to the level of Establishment, and hence the land swap isn't even necessary. As someone who does not support much of any religious symbology in public places, I would tend to agree with that position. It is already there, it isn't that big of a deal, and I don't know that anyone has shown that there is really any harm being done by it.

I would not support someone putting up something new like this, but it is already there, and there is at least a token/fig leaf of it NOT being a strictly religious symbol (even though I think at this point that is actually all it is).

[DGuller]

Meh, I don't mind some religious displays on public property, and I don't even mind a reasonable bias towards Christianity.  After all, most of the country is Christian, it's just natural for Christian stuff to be featured more prominently than, say, Hindu stuff. 

However, selling the public land with that cross on it was clearly done to violate the spirit of the law, even if it was carefully managed to abide by the letter.  Those are the kinds of situations that the Supreme Court should rectify, IMO, and unfortunately that didn't happen here.

[DontSayBanana]

Meh, I don't mind some religious displays on public property, and I don't even mind a reasonable bias towards Christianity.  After all, most of the country is Christian, it's just natural for Christian stuff to be featured more prominently than, say, Hindu stuff. 

However, selling the public land with that cross on it was clearly done to violate the spirit of the law, even if it was carefully managed to abide by the letter.  Those are the kinds of situations that the Supreme Court should rectify, IMO, and unfortunately that didn't happen here.

I'm not sure where you're getting that it was against the "spirit of the law."  This was a popular symbol, by and large, both to Christian and non-Christian observers, and the court chose to uphold the "spirit" of "insure the domestic Tranquility" by pointing out that it was largely a non-issue, since the government had not actively endorsed religion.

[DGuller]

I'm not sure where you're getting that it was against the "spirit of the law."  This was a popular symbol, by and large, both to Christian and non-Christian observers, and the court chose to uphold the "spirit" of "insure the domestic Tranquility" by pointing out that it was largely a non-issue, since the government had not actively endorsed religion.

The spirit of the law is to not having huge crosses on the public lands.  Selectively making the small piece of land non-public just to let that cross stand there, in the middle of the public lands, is done only to violate that spirit of the law.

[Faeelin]

Good point.  While we're at it, I think we need to go remove all those crosses on headstones at Arlington Cemetery, so that they won't make you feel uncomfortable.

This would be at the Arlington Cemetary where families of fallen soldiers can choose between 39 different religious symbols, right?

[DontSayBanana]

The spirit of the law is to not having huge crosses on the public lands.  Selectively making the small piece of land non-public just to let that cross stand there, in the middle of the public lands, is done only to violate that spirit of the law.

It doesn't take the Supreme Court to know that you'd still have to be able to access that small piece of land, which would mean granting an easement.  Guess what?  Once the government grants that easement, there's a nice, letter-of-the-law reason to attack them with an establishment suit.  The Supremes actually just made it easier to fight this with the letter of the law and not resort to a loophole versus loophole case of mental masturbation.  On top of that, cy pres makes it nice and easy for the government to reclaim that little bit of turf if they don't play nice.

[derspiess]

My assertion is the same as that used by the ACLU

Automatic proof that you're wrong

[derspiess]

This would be at the Arlington Cemetary where families of fallen soldiers can choose between 39 different religious symbols, right?

STOP STALKING ME

[The Minsky Moment]

I was wondering how long timmy was going to take before posting this one.  Could he be slipping?

This case had a very unusual procedural posture - i.e. the prior legal arguments and rulings that preceded this particular appeal reaching the Supreme Court.  That plus a Kennedy deluxe opinion and a couple inconsistent concurring opinions means it is hard to draw meaningful conclusions from this.

Grumbler asks the sensible question: "If a problem can be resolved to the satisfaction of all actual parties and without violating the constitution, why object to that resolution?"  I think that is exactly what is driving Kennedy's plurality opinion in this case.  The actual result reached seems to be the most reasonable and rational one and Kennedy is basically doing an O'Connor-esque manuever of coming up with the legal argument that allows him to back into the common-sense result.

The problem is that this case is not really a constitutional case - it is a case about the enforcement of an existing injunction.  The constitutional case was brought years ago and the plaintiff won.  As a result of that victory, the plaintiff got an injunction against the government which the government failed to appeal.  Now one could plausibly argue that the injunction shouldn't have issued in the first place, but that legally-speaking is water under the bridge - the government waived their rights to challenge or modify the injunction.

The dissent argues - rather persuasively IMO - that the injunctive language is pretty broad and that the government's transfer violates that language.  Alito, Scalia and Thomas adopt a much narrower interpretation of the injunctive language, and find no violation.  Roberts essentially concedes that the injunction may been technically violated but not in substance.  That leaves Kennedy alone writing an opinion of the Court which seems to concede that the transfer violated the injunction, but tries to get around it with a lot of hand-waving.  His principal argument seems to be that the basis for the enforcement of the injunction differed from the basis used to get it in the first place - but I can't think of any legal principle or precedent that bars this - and apparently neither could he (b/c he didn't cite to any). 

[grumbler]

The fact that the "swap" had no *other* benefit beyond letting people have their giant cross on public land is plenty of evidence for me.

No one has a cross on public land.

My assertion is the same as that used by the ACLU, and held up by a lower court. Presumably there is some kind of basis for it.

I cannot understand how your assertion forms the basis for the ACLU complaint, nor the basis under which some lower courts ruled that the land swap was somehow unconstitutional.  They are not arguing your argument (that the Federal government cannot sell land to anyone who might use it for purposes other than those allowed to the federal government itself), so I don't see how the assertions can be the same.

None of the dissents in this case used your assertion, either.

My point is accepted by the USSC, though, so presumably there is some basis for it.