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    • The View - The Cross on the Hill

    By Erwin Chemerinsky Richard Barkinskiyrejn | Oct. 27, 2009
    Columns

    Constitutional Law,
    U.S. Supreme Court

    Oct. 27, 2009

    The View - The Cross on the Hill

    Few cases before the U.S. Supreme Court this year will receive more media attention than Salazar v. Buono.

    Erwin Chemerinsky

    Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

    Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).

    Few cases before the U.S. Supreme Court this year will receive more media attention than Salazar v. Buono. The issue is whether a large cross in a large federal park in the Mojave Desert violates the Establishment Clause of the First Amendment. The underlying issues are profoundly important: When do religious symbols on government property violate the Constitution? Who has standing to challenge them? Can the government avoid Establishment Clause issues by transferring the land to private ownership?

    The cross sits atop Sunrise Rock in the Mojave National Preserve, an area of 1.6 million acres of federally owned land. The cross is eight feet tall and is constructed out of four-inch-diameter metal pipes that are painted white. It is a traditional Latin cross and has been used as a place for Easter services since 1934.

    The lawsuit before the Supreme Court has a long history. The district court and the U.S. Court of Appeals for the 9th Circuit found that the cross violates the Establishment Clause of the First Amendment. Congress, in 2004, transferred ownership of the cross to the Veterans of Foreign Wars in an effort to avoid the injunction to remove it. Both the district court and the 9th Circuit subsequently found that this was a sham transfer. The Supreme Court granted review and heard oral arguments on Wednesday, Oct. 7.

    The Supreme Court has not held that all religious symbols on government property are unconstitutional. Rather, the Supreme Court has focused on whether the symbol would be perceived by a reasonable observer as a government endorsement of religion or a particular religion.

    In this case, the answer should be easy: A large cross, standing by itself in a federal park is an impermissible symbolic endorsement for religion. As the 9th Circuit noted, "[t]he Latin cross is the preeminent symbol of Christianity. It is exclusively a Christian symbol, and not a symbol of any other religion." A reasonable person seeing a large cross in a public park likely would perceive it as a religious symbol and not, as the government claims, as a memorial to slain soldiers.

    Nor does the transfer of the cross to the Veterans of Foreign Wars solve the Establishment Clause violation. The government cannot avoid the Constitution by transfers to private hands. A city cannot avoid the requirement for free speech in public parks by transferring them to private control; a state government cannot avoid the prohibition of cruel and unusual punishment in prisons by transferring the inmates to private prisons.

    In fact, the federal court of appeals noted that notwithstanding the transfer, control over the land and the monument still resided in the federal government. The National Park Service retains overall management and supervision of the Preserve and of all national memorials. The "five-foot-tall white cross" in the Mojave National Preserve is expressly designated as a "national memorial."

    The government retains various rights of control over the cross and the property. The federal court of appeals explained "that a reasonable observer, even without knowing whether Sunrise Rock is federally owned, would believe - or at least suspect - that the cross rests on public land because of the vast size of the Preserve, more than 90 percent of which is federally owned."

    Moreover, allowing such transfers as a way of avoiding the Establishment Clause renders the constitutional provision meaningless. A city could put a large cross atop its city hall and simply transfer ownership of the roof of the building to private owners.

    A final issue in the case is who has standing to challenge such a symbol. The Establishment Clause's limit on religious symbols on government property would be nullified if no one has standing to sue. Although this question is presented before the Supreme Court, the procedural history of this case may obviate the need for it to be decided.

    Standing was not raised by the government during the litigation over the cross in either the district court and the court of appeals. It was only later, in an enforcement proceeding, that the standing issue was raised. But a majority of the justices at oral argument rightly seemed to indicate that this is too late, that principles of preclusion prevented it from being litigated now when it had not been raised in any of the original proceedings.

    But if the Supreme Court reaches the standing question, it should conclude that any person who sees the symbol can sue to challenge its constitutionality. There have been numerous Supreme Court cases concerning religious symbols on government property, such as crosses, menorahs, and nativity scenes. Never once has the Supreme Court questioned the ability of plaintiffs to sue in federal court to enforce the Establishment Clause.

    Those who oppose standing attempt to characterize the injury as no more than being "offended" by the symbol. This trivializes the injury and the Establishment Clause.

    The Establishment Clause should be understood as creating a right for individuals to not have their government endorse religion or a particular religion. A violation of this right, like other constitutional rights, should be sufficient for standing. Many rights could be similarly dismissed as just being about "offense." One could say that the denial of speech in violation of the First Amendment or an invasion of privacy in violation of the Fourth Amendment are really just about people being offended. But more is involved than that, just as more is involved when the government unconstitutionally endorses religion.

    Ensuring that the government be secular is not hostility to religion. The place for religion is on private property, private homes, places of worship. A robust free exercise clause protects this. At the very least, the government must be neutral among and toward religion. Such neutrality is not and never has been about hostility to religion.

    To enforce that neutrality, someone must have standing to sue to challenge offending religious symbols. Any person who encounters such symbols has standing to sue.

    There may well be five justices on the current Supreme Court - Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito - who would like to see a major change in the law of the Establishment Clause and more latitude for the government to support religion and for religion to be a part of government. Salazar v. Buono is the first major Establishment Clause decision of the Roberts Court and thus could be momentous in showing the future direction of the law in this controversial and divisive area.

    Erwin Chemerinsky is dean and Distinguished Professor of the University of California, Irvine, School of Law.

    #247287

    Richard Barkinskiyrejn

    Daily Journal Staff Writer

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