A cross we should not bear

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Robyn Blumner
Monday, October 12, 2009

U.S. Supreme Court Justice Antonin Scalia is so insensitive to the religious beliefs of others that during an oral argument on Wednesday he had the nerve to denounce the idea that Jewish veterans may not feel honored by a Latin cross war memorial that sits atop a rocky slope at California’s Mojave National Preserve.

“What would you have them erect?” Scalia, a devout Catholic, scoffed. “Some conglomerate of a cross, a Star of David, and, you know, a Muslim half moon and star?”

“I have been in Jewish cemeteries,” responded ACLU attorney Peter Eliasberg, who represented Frank Buono, a former National Park Service official who objected to the cross. “There is never a cross on a tombstone of a Jew.”

To that Scalia replied with irritation: “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.”

Outrageous? Really? And if the only monument at an officially designated American war memorial was a large Muslim crescent and star, would Scalia feel included?

The cross at issue is no bigger than 8 feet tall, made of 4-inch diameter pipe painted white. The Veterans of Foreign Wars’ Death Valley Post originally placed a cross at the preserve in 1934, but that one is long gone. Due to vandals and the elements, the cross has been replaced many times. Henry Sandoz, a retired mine worker who has taken it upon himself to care for the cross, said that he has re-erected it repeatedly.

It is telling that Congress has weighed in three times to try to keep the cross where it is. Such ridiculous lengths suggest what we all know: Without a constitutional brake, government will use its power to promote the majority’s religious beliefs.

In fact, in 1999, the Park Service denied a request to erect a Buddhist memorial, known as a “stupa,” near the cross. There was no congressional outcry then. But when Buono wrote the Park Service’s director in 2000 stating that the cross violated the Constitution’s Establishment Clause, Congress jumped into action and barred the use of government funds to remove the cross.

Then, in 2002, when the issue of the whether the cross violated church-state separation was in federal court, Congress passed a law designating the cross as a national memorial that commemorates American involvement in World War I.

As an interesting side note, in 1999 the Park Service commissioned a historian to determine whether the cross had sufficient historical significance to be eligible for the National Register of Historic Places. It turns out it did not. But Congress saw fit to include this replace-a-cross as a memorial as if it’s another Mount Rushmore.

Congress acted again in 2003. Worried that a federal appellate court would find the cross a government endorsement of religion (which the court did because it was), Congress transferred ownership of the land on which the cross sits to the VFW. But it included a proviso that if the VFW didn’t maintain the memorial, the land would revert back to the U.S. government.

Essentially, the issue before the Supreme Court was whether or not this transfer into private hands cured the constitutional defect.

It doesn’t. Congress made sure to structure the land deal so the cross would remain. To reward this end-run would open a loophole as wide as the Mojave itself. What’s next, privatizing parts of the National Mall?

And as for Scalia, he’ll take any opportunity to water down church-state separation, even if he has to delude himself into thinking that a Christian cross honors people of other faiths.

A friend-of-the-court brief by the Jewish War Veterans of the USA states that 250,000 Jewish service members served in World War I, yet the nation’s World War I memorial is a national endorsement of Christianity’s chief symbol. This, the brief says, sends the “unmistakable message” that the sacrifices of non-Christian veterans are less worthy.

Something else for Scalia to scoff at.

Robyn Blumner is a civil liberties and labor law expert who writes about individual freedom, trade, globalization and workers’ rights. She is a columnist for the St. Petersburg Times in St. Petersburg, Fla., and syndicated by Tribune Media Services. E-mail her at blumner@sptimes.com.

Last updated: 11:45 am Thursday, December 13, 2012

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