Court May Hear Landmark Religious Establishment Case

The Bush administration is urging the Supreme Court to consider whether the government can continue displaying a cross as a memorial to fallen soldiers in California’s Mojave National Preserve. The Ninth Circuit has already ruled that the cross must be taken down, but Congress and the president have consistently tried to get around that ruling. Now, the administration is looking to the high court’s new conservative majority to step in.

The debate over the cross started in 1999, when the National Park Service considered a request to place a Buddhist shrine on a nearby trail. The request was denied, but soon after, the National Park Service announced that it would also take down the cross. Congress intervened however, and ordered that the cross remain on display. But in a 2001 suit, brought by former park service employee Frank Buono, the Ninth Circuit decided that by refusing to place the Buddhist shrine, but continuing to display the cross, the government would be violating the establishment clause.

Soon after the Ninth Circuit’s decision, the Department of the Interior, under orders from Congress, gave the land on which the cross sat to the VFW, a private organization. The government believed this would provide a way around the court’s decision. But the Ninth Circuit didn’t budge, and claimed that because the piece of land given to the VFW sat in the middle of a massive national preserve, any “reasonable observer would perceive” the cross as an endorsement of religion. Now, Solicitor General Gregory Garre has asked the Supreme Court to consider the case.

The importance of this particular case, should the court accept it, is not so much the particular cross display, but rather the ability of citizens to sue the government for violation of the establishment clause. One of the arguments made by Mr. Garre in his appeal to the court is that Mr. Buono lacked standing to bring the suit. This argument has played well with the Supreme Court’s conservative leaning majority.

As we noted in an earlier post, 40 years of precedent has provided considerable leeway for citizens to challenge government policies when it comes to establishing religion. In 2007 though, the Supreme Court, under Chief Justice John Roberts, began chipping away at that right by ruling that taxpayers don’t have the right to challenge executive expenditures under the establishment clause. Justices Antonin Scalia and Clarence Thomas wanted to do away with the right altogether. Now, the Court may have an opportunity to do just that.

If the justices rule that Mr. Buono lacked standing to file his claim in the Ninth Circuit, it could have disastrous effects on citizens’ ability to ensure Church-State separation. We will certainly be keeping a close eye on this case.