The AP describes the situation as reported on the Fox website.
The cross, on an outcrop known as Sunrise Rock in the Mojave National Preserve, has been covered in plywood for the past several years following federal court rulings that it violates the U.S. Constitution's First Amendment prohibition against government endorsement of religion.BPNews states,
Peter Eliasberg, an ACLU lawyer from Southern California, told the justices the government had violated the establishment clause by designating the display as a national memorial, by making certain "the cross remains up" and by favoring the "same parties that it has always favored in this case to the exclusion of others."Now, the problem simply can't be a violation of the establishment clause (notice the subtle language change to "endorsement of religion"). No matter how whiny the political Left may get, there is no establishment happening. The Federal government is not taxing citizens to fund a particular church or anything of the kind that the Framers of the Constitution would have meant in its original context.
A portion of the statement by Eliasberg does cause an interesting problem.
by making certain "the cross remains up" and by favoring the "same parties that it has always favored in this case to the exclusion of others."What exactly is meant by this? Does Eliasberg mean to say that others have desired to set a War Memorial to veterans of different faiths but were prevented in doing so? If that is the case, and I doubt it is, then there certainly is a problem. To prevent a Jewish group from presenting a Memorial to fallen men of the Jewish faith while permitting another is to violate Equal Protection
and discrimination laws.
Another aspect to this problem is that this Memorial was set up by the Veterans of Foreign Wars, VFW. This is hardly a religious church group. Did they really mean to say that the message of the symbol of the Cross to be a memorial for only Christians, or is it a memorial for those who fought and died for our nation during WWI, while utilizing a religious symbol the majority would identify. Again, no violation of the Establishment Clause is evident in any way, shape or form.
Albert Mohler comments,
Arguing for the retention of the display, lawyers for the government are expected to argue that the Mojave cross is constitutional because it represents a secular symbol intended to honor those who died in the nation's service in World War I.To which Mohler takes offense,
Christians should reject any argument that presents the cross as a secular symbol.I agree with Mohler that the Cross is anything but a secular symbol for Christians, but that's just it. Obviously Confessional Baptists despise the "cultural Christianity" since Christianity is not a culture but a set of beliefs that transcend cultures based in historical events. In other words, there is no such thing as a Christian nation unless we mean the church. But not recognizing that a cultural Christianity exists and the VFW lived that out when it did what it did can't be overlooked in its own historical context.
However, during the oral arguments, it became clear that this case is not totally about the Cross display but whether or not Congress acted legally when it decided to rid itself of this problem case by transferring the land to private ownership. This is where the 9th Circus got involved. According to the AP,
The appeals court invalidated the 2004 land transfer, saying that "carving out a tiny parcel of property in the midst of this vast preserve -- like a doughnut hole with the cross atop it -- will do nothing to minimize the impermissible governmental endorsement" of the religious symbol.The way in which the story is reported, Scalia once again disagrees with Breyer,
"It seems to me unreasonable to read the injunction to say the government shall not permit anybody to display a cross on that land no matter who owns the land. I assume the injunction meant you will not permit the cross to be displayed on this parcel of government land.Again, how does this violate the Establishment Clause? I have yet to hear a reasoned argument. Perhaps it would be wiser for future generations to do something similar that is done in Arlington Cemetery. Each grave has its own memorial (Cross, Star of David, whatever). Nevertheless, this Memorial has been established for 75 years and should remain as a thoughtful gift by the VFW.