The Mojave Desert Cross

I am reticent to post this, since no doubt our newest bestest buddy Anon will accuse me of posting something serious in response to him. However, S6R and I discussed this issue this morning and it does warrant some discussion.

The 9th Circuit decided yesterday against rehearing the case of the Mojave Desert memorial Cross. That means the previous order to remove the cross will stand. The 9th Circuit opinion is directly contrary to the 7th Circuit on the question of whether transferring land containing a memorial cross from government to public control will negate the First Amendment problems.

Anyway, S6R asked what effect this would have on crosses in Arlington and other veterans cemetaries. I happened to write a paper on that topic for law school, so thought I would post part of that paper which addresses that issue.

Enjoy (Except you Anon.)

If the Mt. Soledad and Mojave Desert Crosses are not spared, what fate awaits other veterans and war memorials? As noted above, these are the only two known which are specifically made in the shape of religious symbols, and these memorials do not contain religious imagery so much as the memorials themselves embody the shape of the most easily recognized of religious symbols. And, as some fear, will the next target of this religious expunging be the crosses in Arlington and other national cemeteries?

War memorials that have religious symbols embedded within the display, but which are not facially religious in nature, will probably find solace under the Court’s reasoning in Van Orden v. Perry. There a Texas resident sought to have a display of a monument inscribed with the Ten Commandments removed from the grounds of the Texas State Capitol. Noting that Establishment Clause cases present a challenge since our “institutions presuppose a Supreme Being, yet these institutions must not press religion,” the Court held that this case fell outside the Lemon Test because the monument was “passive” and thus the “analysis is driven both by the nature of the monument and by our Nation’s history.” Based on this analysis, the Court concluded that the monument could remain.

For any future litigation concerning religious symbols embedded within a Memorial, this bodes well. A war memorial is unlikely to ever violate the first prong of Lemon’s tripartite test, and thus faces problems with only the second and third prongs. The Van Orden decision takes war memorials outside the scope of Lemon, and looks at the historical underpinnings of the display. Under such an analysis, the vast majority of war and veterans memorials will likely be preserved, owing to the fact that most such monuments have stood for a long time.

It seems unlikely that anyone would seek removal of crosses from Arlington Cemetery, and even less likely that such litigation would be ultimately successful. The ACLU has stated emphatically that they have no intention of going after the grave markers, and asserted that such displays are in fact constitutional. On what legal basis they make this statement is unclear, as no such litigation has ever proceeded. But approaching such displays from a Lemon Test perspective, it is unlikely that any court would determine that the placement of crosses, stars of David, or even Wicca symbols on gravestones at the behest of fallen soldiers represents either an advancement of, or “excessive entanglement” with, religion.

Even more unlikely is successful litigation on either memorials or gravestones where the Court applies the Endorsement Test. Embedded sectarian symbols in a Memorial to fallen soldiers or long past wars would seem unlikely to send any message to adherents or non-adherents regarding their standing within a political community. With regard to gravestones, the clear and unambiguous message conveyed is that the service member who lies under such a device was in fact a member of the religion whose symbol adorns their final resting place.

The fate of the grave markers for unknown soldiers that are a cross is on significantly more precipitous legal footing. Those gravestones clearly are not there at the behest of the fallen or their family, as the individual lying beneath is “unknown but to God.” Should any litigation occur on those crosses, the key issue may very well be the distinction on whether the crosses were erected on the basis of pure mathematics (the majority of soldiers who fell in Normandy were demonstrably of the Christian faith) or whether the crosses represented an illegitimate furtherance of religion by those who made the determination to place crosses there and not some other non-religious marker. Either way, as the crosses have stood there in excess of 50 years seemingly without complaint, even were a party to have standing to seek their removal, a good argument on Van Orden grounds could be made for their continued presence.

Only time will tell what the addition of Chief Justice Roberts and Justice Alito will mean for future of the Lemon Test. Preliminary canvassing suggests that the Mt. Soledad and Mojave preserve crosses are the only remaining crosses which serve as War Memorials, so resolution regarding those two landmarks will likely be directly limited. However, the initial canvassing by the ADF suggests that there are hundreds if not thousands of Memorials that contain religious symbols embedded within the display. The Van Orden decision would seem stem the encroachment of expunging such displays, but the one constant in Establishment Clause jurisprudence is the alacrity with which the standard evolves. Only time, and the Court, will decide whether the small cross in the desert will be uncovered or removed.