RENEE MONTAGNE, host:
The U.S. Supreme Court hears arguments today in yet another case involving the display of religious symbols on government property. At issue in this case, is a white cross erected on top of an outcropping of rock on federally owned land in California's Mojave Desert.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The Veterans of Foreign Wars' Death Valley Post first built the cross at Sunrise Rock in 1934 to honor Americans who died in combat in World War I. The most recent version of the cross was erected 11 years ago by a man named Henry Sandoz.
Neither the VFW nor Mr. Sandoz ever owned the land where the cross is located -nor did they have permission to build on the land.
But in 1999, a Buddhist asked the park service for permission to erect a Buddhist shrine on federal land near the cross. The park service said no, and that set in motion a series of events in the courts and Congress, culminating in today in the U.S. Supreme Court.
Frank Buono is a retired assistant park service superintendent who was assigned to the Mojave preserve when it first opened. He drove by the cross often, and although a veteran himself and a Mass-going Catholic who has crosses all over his own home, he was troubled. When he retired, he went to the ACLU with his concerns.
Mr. FRANK BUONO: It's one thing to have crosses in one's house or in one's churches, but another to have one permanently affixed to lands that belong to everyone.
TOTENBERG: The park service actually agreed, and wanted to take the cross down - but Congress stepped in. And Buono, represented by the ACLU, eventually went to court and won. Two lower courts ruled that the existence of the cross alone on public land amounted to government endorsement of one religious view and therefore violated the Constitution's ban on establishment of religion.
Congress then passed a law, carving out from the vast preserve, the tiny piece of property where the cross stood, and transferred the land to the Veterans of Foreign Wars. Congress also mandated that the cross be maintained - or else the land would revert back to the federal government.
And Congress designated the cross as one of the nation's 45 national memorials - along with the Lincoln Memorial, the Washington Monument and Mount Rushmore.
The lower courts ruled that the land transfer was an unconstitutional end-run that perpetuated the government's endorsement of a religious symbol. The government appealed to the Supreme Court, and today the justices will hear arguments in the case.
Advocates for the cross contend it is not a religious symbol. Ted Cruz represents the Veterans of Foreign Wars and the American Legion
Mr. TED CRUZ (Veterans of Foreign Wars, American Legion): For many, many years, we have used the symbol of a Latin cross to memorialize fallen veterans.
TOTENBERG: Douglas Laycock, who filed a brief on behalf of Muslim veterans, counters that the cross only honors the Christian dead.
Mr. DOUGLAS LAYCOCK: The cross is a symbol of the Christian belief that the faithful will rise from the dead. You take that away and it makes no sense as a symbol to honor the dead.
TOTENBERG: Much more than one cross in the desert is at issue in this case.
The VFW and other veterans groups contend that if the Supreme Court rules against the cross, bulldozers across the country will soon be annihilating war memorials - like the commemorative Argonne Cross at Arlington and the Canadian Cross donated by the government of Canada, as well as crosses on headstones at Arlington and elsewhere. Ted Cruz.
Mr. CRUZ: Arlington Cemetery is on public land, and in the midst of Arlington Cemetery, the Cross of Sacrifice stands. If the ACLU is correct - if the Ninth Circuit Court of Appeals is correct - then the crosses that stand on Arlington Cemetery must be torn down as well. And that is an extreme and radical view, and it is not consistent with the Constitution of the United States.
TOTENBERG: Thats scare-mongering, say lawyers for the ACLU. Peter Eliasberg notes that the only time the ACLU has ever challenged a military gravesite it was to ensure that the family had a choice of symbol for the headstone. Arlington offers 64 different religious symbols for headstones - for Christians, Jews, Muslims, Buddhists, even Wiccans.
Context matters, he says. And given the multiplicity of religious symbols there
Mr. PETER ELIASBERG (Lawyer, ACLU): I don't think anyone would come in and then see a cross like the Argonne Cross and think, well, the government's favoring Christianity - because there are so many other religious symbols there.
TOTENBERG: In contrast, he observes, the cross at Sunrise Rock is the only national memorial to commemorate World War I veterans - thousands of whom were not Christian.
As powerful as these arguments, pro and con, are, the Supreme Court may today focus less on them than on a technical question that could not only resolve this case but potentially all others involving religious symbols - and maybe even more than that.
It's the gate-keeping question of standing: Who has standing in court to challenge the placement of a religious symbol on public property? The government maintains that an individual who is offended by a religious symbol has not suffered a real injury that justifies a court challenge.
In addition, the government contends that the congressional transfer of the land to the VFW ends any government endorsement of religion. The ACLU counters that the government still favors the cross, by the terms of the land transfer, which designates the cross as a national memorial and declares that the VFW only keeps the land if it maintains the cross.
This may sound a bit like how many angels can dance on the head of a pin, but I matters - big time. Because if the government and the VFW win on this point, it could mean that for all practical purposes, the government - whether local, state or federal - can put up whatever religious symbols it wants, and there would be no way to challenge it in court. ACLU supporter, Douglas Laycock.
Mr. LAYCOCK: If they want to put a cross on every street corner, they could do that. You know, there would be no limits on abuses. Government could promote religion as much as it wanted to. And if taking offense at a display doesn't give standing, the next step might be to say in taking offense at a religious ceremony or prayer isn't enough to give standing.
TOTENBERG: The VFW's Ted Cruz seems to acknowledge that a Supreme Court decision on the standing question could quite neatly eradicate almost all challenges to religious symbols, like crosses and Nativity scenes. He sees these challenges as representing a hostility to religion the Founding Fathers never contemplated.
Mr. CRUZ: There is no doubt that the past several decades have seen a relentless wave of litigation, as individual plaintiffs have, over and over again, sought to scour the public square and to remove any reference to faith or the almighty. And it is manifested in cases like this. That extreme view of the Constitution is utterly inconsistent with the views of the framers of our Constitution and with the longstanding views of the American people.
TOTENBERG: Does any of this really matter to most people? Douglas Laycock concedes it probably only matters to a relative few.
Mr. LAYCOCK: But religious liberty is, in part, about protecting the touchy people, the people who take these religious statements more seriously and more literally than the rest of us. They're the ones who are most in need of protection, and they exist in every faith.
Nina Totenberg, NPR News, Washington.
MONTAGNE: And you can read summaries of the major cases the court will hear this term and read profiles of the justices at NPR.org.
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