Before the U.S. Supreme Court is a lawsuit about a large cross atop a rocky outcropping in a remote part of California’s Mojave Desert. Originally erected in 1934 by the Veterans of Foreign Wars as a memorial to fallen WWI soldiers, it is on a federal preserve under the authority of the U.S. Park Service.

Whether the cross is permissible is not the new or precedent setting type of question the Court usually takes up to clarify the law, and the case is rather old, with a twisted history leading to an unusual question for the Supreme Court — so why is the Court deciding it?  I think it is to make a more dramatic change in the law through the effect of a decision on standing: more on that below.

The Cross in Dispute. Credit: Eric Nystrom

Two courts, trial and appellate, decided in 2002 and 2004 that  display of the cross on the federal preserve would indicate to an informed, reasonable observer that the government endorsed the cross’ Christian significance. (David Lancaster wrote about the case on this blog on October 12, agreeing with these courts that the cross was a symbol of Christianity, and in its context was an endorsement of Christianity).  Therefore the lower courts held the federal government had violated the establishment clause of the first amendment to the U.S. Constitution.

The words in the first amendment that say “Congress shall make no law respecting an establishment of religion” is traditionally known as the establishment clause.

The First Amendment:

Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press,

or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

To decide the larger question of whether the establishment clause has been violated, courts have used in certain cases a test known as the endorsement test. They ask if by the display of a religious symbol, government endorses religion. If so, the display violates the establishment clause. Some justices, however, prefer another test. It allows the government to employ traditional and historic religious symbols as long as they are non-sectarian.

The endorsement test is stricter; it tends to exclude more religious symbols from public places. That the establishment clause requires the government to be neutral about religion is its premise.

One of the Court’s two cases about the ten commandments from 2005 illustrates this approach. A majority of justices held that displaying the 10 commandments on the hallway walls of a courthouse, after a publicized dispute about such displays, violated the establishment clause. They reasoned that because of its religious purpose, the display was not religiously neutral; even though other, non-religious framed sayings were included in the display, it nevertheless conveyed that the county government endorsed the commandments and the religions associated with them.

The other test, the one based on allowing the traditional and historic use of religious symbols by the government, is more liberal. It tends to allow governments to use non-sectarian religious symbols and practices historically associated with the body politic. Premised on the idea that the main evil addressed by the establishment clause is the coercion of belief, it views symbols as passive and inherently non-coercive: one can simply turn away. Absent clear implication of sectarian endorsement, this test allows them.

The second of the 2005 cases illustrates this approach. The 10 commandments were carved on a large stone monument among other historic and patriotic displays in a lawn surrounding state office buildings. A slightly different majority of the Justices held this did not violate the establishment clause. Not only was it a passive symbol that did not coerce religious belief, but it was donated by a private party over 40 years ago, was among other displays whose historic and patriotic themes accented the 10 commandments’ historic and cultural significance and had not caused dissension.

The Present Court

In the present Court, a majority of five justices would probably take an approach similar to this latter one and allow the cross — if the Court were to address the question of the constitutionality of the government maintaining the cross on the federal preserve.

On the one hand, the cross is not like the 10 commandments monument in the 2005 case. It is alone and prominent; it is also clearly a Christian symbol, one not shared by the other major monotheistic religions.  So David Lancaster and the lower courts have good points — but they are more weighty points under the endorsement test, and not so weighty under the more lenient test that is likely to be used.

On the other hand, the cross is similar to the 10 commandments monument the Court allowed in 2005 in significant ways. It was erected many years ago by a private party, and for memorial purposes rather than religious proselytism. It is not located where passersby on government business normally would have to encounter it, and it has been there many years without exacerbating civic disputes.

BUT, this prediction of mine is unremarkable and beside the point. The Court didn’t take the case to simply apply the majority’s test to slightly different facts. I think the Court is interested in another question, distinct from whether maintaining the cross on a federal preserve violates the establishment clause.

One distinct question the Court may decide goes to whether the governmental endorsement found by the lower courts arose only or primarily from the fact the the US government owned the land on which the cross was erected. In 2004 the Congress directed sale of the parcel of land on which the cross stands to the VFW, a private organization not affiliated with the government. The first amendment, like the Bill of Rights generally, restricts the activities only of governments, not private people and groups (”Congress shall make no law”). Therefore, the case in its newest version presents the question of whether by sale of the land to a private party, Congress could “cure” its violation. The lower appellate court said the sale of a “donut hole with a cross atop it” in the midst of the vast federal preserve did not cure the governmental endorsement and may have added to it.

But the Court may very well not even reach that question. It is logically secondary to another, an obscure, preliminary question - whether the person bringing the suit should have been able to do so, or has “standing to sue.” That is, is he too indistinguishable from other citizens, like the STL Civil Religion Bloggers for instance, all of whom have varied views on the separation of religion and government? Plain ole taxpaying citizens like us cannot run to court with every civic objection we have. Before the courts will hear one of us, a definite and material injury, particular to oneself has to be shown - an injury for which courts can provide a remedy.

The former U.S. park service official who sued to have the cross removed said he would avoid the cross area on future visits to the preserve if the cross remained. He would do so because he is offended by the government displaying it on government property that is not open to other people’s displays and symbols. This refers to the park service’s refusal of someone’s earlier request (1999) to erect a Buddhist shrine near the cross. A Roman Catholic who lives in Oregon, it does not seem that the person suing felt excluded by the government’s display of the cross - he was offended by the government’s refusal to allow other symbols and expressive displays on the site with it. Is this type of offense to one’s civic beliefs a sufficiently definite and material injury for a lawsuit?

This arcane point of who can sue is huge. If park service official who sued lacks standing, the case must be dismissed and should have been dismissed initially — back in 2001. There would be no valid ruling on the constitutionality of the cross.

Even more importantly, a pronouncement by the Court that limits standing to bring cases challenging the government’s use of religious symbols — saying, for instance, that offended citizens whose pocketbook and activities are not substantially affected by the government’s use of religious symbols cannot sue to stop the use of them — would mean fewer challenges in the future.

And the Court will have taken a more consequential step toward leniency in governmental use of religious symbols than is possible through decisions in various, discrete cases. Rather than just formulating a permissive rule for courts to apply in future cases, the Court will have prevented many such cases from ever coming to court.

Whew! That’s a lot of law. I’ll try to explain this last point more later, if comments request it.