5/1/2010—Well, Salazar v. Buono came down last week, essentially allowing the land transfer to the VFW in order to continue to display the cross in the Mojave desert as a WWI memorial. (Technically, it was a remand but the writing is on the wall). No surprise because the cross was clearly being used as a symbol of the dead rather than as a Christian symbol. Here is how I describe the case in my upcoming book, Higher Law in the Public Square:
There are religious symbols which, even without special explanation, are understood to convey mixed religious and secular messages. One such religious symbol that arguably conveys a nonreligious message is a cross used to symbolize the ultimate sacrifice at a war memorial on public land. Such a cross was at issue in Salazar v. Buono, which was decided in April, 2010.
In Buono, the Court faced a complex legal and factual context. In 1934, the VFW erected a Latin cross on federal land in the Mojave National Preserve to honor the dead of W.W.I. In 2002, Federal Judge Robert J. Timlin found that display of the cross on federal land violated the Establishment Clause and granted an injunction ordering the government to remove the cross. Meanwhile, Congress enacted a statute transferring the cross and the land on which it stands to the VFW in exchange for other land of equal value. Judge Timlin then found the land transfer statute unconstitutional and ordered that the 2002 injunction be enforced.
Justice Kennedy, joined by Chief Justice Roberts and Justice Alito in part, found that the Judge should not have enjoined the land transfer without further study because the original decision applied only to a cross on federal land. The land transfer changed the circumstances. The case was remanded to the court below for further consideration because Justices Scalia and Thomas, who found that the plaintiff lacked standing, concurred in the Court’s judgment, thus creating a five-Justice majority. On the other side, Justice Stevens dissented, joined by Justices Ginsburg and Sotomayor, arguing that the land transfer was a violation of the Establishment Clause. Justice Breyer also dissented, albeit on technical grounds of injunction law.
Buono was decided on narrow grounds concerning the private ownership of the land in question. It is clear from the opinions that land transfers in general will not usually decide Establishment Clause issues. That posture of the case kept the fundamental issue from being decided: can government use a cross to honor the dead in war?
That basic issue is clear enough. The cross became a traditional symbol of honoring the dead in America and the West because most of the soldiers were Christian and many of them wanted crosses above their graves. Honoring this wish was no more an endorsement of Christianity than was having military chaplains in the army. The government was accommodating the private religious wishes of its soldiers.
But because military cemeteries thus became the scene of row after row of crosses, the cross became a simple shorthand for honoring the military dead. Think, for example, of the opening lines of perhaps the most famous poem of World War I, In Flanders Fields:
In Flanders fields the poppies blow
Between the crosses, row on row, … .
As Justice Kennedy put it in Buono, “a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”