In a shift away from strict church-state separation, the Supreme Court gave its approval Wednesday to displaying a Christian cross on government land to honor the war dead, saying the Constitution “does not require the eradication of all religious symbols in the public realm.”
Speaking for a divided court, Justice Anthony M. Kennedy said the 1st Amendment calls for a middle-ground “policy of accommodation” toward religious displays on public land, not a total ban on symbols of faith.
By a 5-4 vote, the justices reversed lower courts in California that had ordered the U.S. Park Service to remove an 8-foot-high cross that has stood in various forms in the Mojave National Preserve since 1934 as a memorial to World War I soldiers.
The long-running dispute over the Mojave cross was the first church-state case to reach the high court since John G. Roberts Jr. became chief justice five years ago, and with the substitution of Justice Samuel A. Alito Jr. for Sandra Day O’Connor shortly thereafter. The decision is the latest in which the court has shifted somewhat to the right.
The ruling recasts the law in a way that will make it harder to challenge other religious displays, such as the Ten Commandments or depictions of Jesus’ birth during the Christmas season.
In the past, the high court, led by O’Connor, has said a city or state’s display of a religious symbol was unconstitutional if it could be seen as an official “endorsement” of a particular faith. In June 2005, a 5-4 majority cited this reason for striking down the display of the Ten Commandments in Kentucky courthouses.
Alito, who came to the bench when O’Connor retired, joined Wednesday with Kennedy and Roberts in ruling that a religious display can be held if it carries other meaning. At Christmas, the depictions of a manger scene often come as part of a display celebrating the holiday. The Ten Commandments are defended on the grounds that they are part of this nation’s legal and moral heritage.
Justices Antonin Scalia and Clarence Thomas agreed with the result in the court case. They said the former park service official who sued had no legal standing to object.
The cross “evokes far more than religion,” Kennedy said.
He faulted the judges in California for having “concentrated solely on the religious aspects of the cross, divorced from its background and context. 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, notable contributions and patient striving help secure an honored place in history for this nation and its people,” he wrote.
Since the lower court judges adopted the wrong approach, Kennedy sent the case back to California. He said the Mojave cross should be reconsidered “in light of a policy of accommodation,” and its display presumably upheld.
Retiring Justice John Paul Stevens spoke for the dissenters.
The government has good reason for “honoring all those who have rendered heroic public service, regardless of creed,” he said, but it should “avoid endorsement of a particular religious view” in doing so. Justices Ruth Bader Ginsburg and Sonia Sotomayor agreed. Justice Stephen G. Breyer dissented separately.
The Mojave cross sits atop Sunrise Rock about 10 miles from the nearest highway. In 1999, after the Park Service refused to permit a Buddhist shrine to be erected nearby, former park service employee Frank Buono sued, saying the official preference for the cross violated the 1st Amendment and its ban on “an establishment of religion.”
A federal judge and the U.S. 9th Circuit Court of Appeals agreed. But before the cross could be removed, Congress intervened and said the land could be transferred to private hands, so the Veterans of Foreign Wars could preserve the cross. Again, a judge and the 9th Circuit disagreed, and said this government intervention did not cure the problem.
Peter Eliasberg, a lawyer for the ACLU of Southern California, which represented Buono, called the decision disappointing. “The cross is unquestionably a sectarian symbol,” he said.