High court decides case about a cross in a national preserve

My first impression was that this is a no-brainer mistake on the part of the Supreme Court. Here's what I wrote originally.


From the Pew Forum on Religion & Public Life

The U.S. Supreme Court today overturned a lower court ruling that had ordered the removal of a cross from a World War I memorial located in California’s Mojave National Preserve. Prior to the high court’s decision in this case, Salazar v. Buono, a federal district court had ruled that allowing the eight-foot-tall cross to remain on the preserve (which is a national park) violated the First Amendment’s Establishment Clause. The same district court later ruled that a 2003 federal law aimed at eliminating the Establishment Clause problem by transferring the property around the cross into private hands was an invalid attempt by the U.S. Congress to evade the district court’s earlier ruling. But in its decision today, a divided Supreme Court ruled 5-4 that the lower court had not properly considered the validity of the congressional statute transferring the property, known as Sunrise Rock, from public to private hands.

Justice Anthony Kennedy, in announcing the judgment of the court, stated that Congress’ intent in passing the land-transfer statute was to maintain a war memorial rather than to promote a particular religious creed. “By dismissing Congress’ motives as illicit, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage,” Kennedy wrote. “Private Citizens put the cross on Sunrise Rock to commemorate American servicemen who died in World War I.” Accordingly, the high court ordered the district court to reconsider whether the land transfer changed circumstances enough to allow the cross to remain without violating the Establishment Clause.

In a dissenting opinion, Justice John Paul Stevens said the district court had been correct both in its original ruling that the cross should not be displayed in the preserve and in its subsequent decision that the land-transfer statute did nothing to alter the fact that a sectarian religious monument essentially remained in a national park. “The land-transfer statute mandated transfer of the land to an organization that has announced its intention to maintain the cross on Sunrise Rock,” Stevens wrote. “True, the government would no longer exert control over the cross. But the transfer itself would be an act permitting its display.”

Congress is in thrall not only to Wall Street but to religion as well. Unfortunately the Supreme Court tends to side with the special interests in both areas. In neither can one reasonably attribute this position to traditional corruption—no one is claiming the Supreme Court was paid off. But it seems to me that this shows that thought corruption runs deeper than money.



On the other hand, the NYTimes provides further explanation. First it quotes Kennedy's statement in favor of the land swap.

The Interior Department could not leave the cross in place without violating the ruling that the display was unconstitutional, Kennedy wrote, "but it could not remove the cross without conveying disrespect for those the cross was seen as honoring. Deeming neither alternative satisfactory, Congress enacted the land-transfer statute."

That strikes me as a dishonest argument. Do we ever allow the constitution to be violated because some people claim they are offended by what it says? I don't think so.

But the Times also notes that

Congress had authorized a land swap with the Veterans of Foreign Wars, trading 1 acre of land around the cross in exchange for 5 privately owned acres elsewhere in the preserve.

This seems to me to make a significant difference. I hadn't known about the exchange. I thought that the government just gave away the land. If that's not the case, and if the exchange was at least a fair exchange for the government, I don't see why that is objectionable. If the cross had been erected on one of those private parcels, presumably it would have been ok.

The question now seems to me to turn on whether the exchange cheated to government economically. Are the 5 acres it got worth as much as the one acre it gave up in the exchange? Perhaps the one acre is more valuable because it is higher or more prominent, etc. If it was a fair economic exchange, I would have no objection. But I haven't seen an answer to that question.