Apr 292010
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I’m no fan of the conservative Roberts Court, but I have to applaud their decision in the Salazar v. Buono case. Those in opposition to the ruling are quick to launch into all manner of anti-constitution hyperbole but fail to provide any real substance for their argument. Contrary to their assertions, I believe the Constitution would only have been offended had the Court required removal of the Mojave Cross.

The opposition claims that the cross is an “endorsement” of a particular religion, and therefore should be prohibited. On the surface, this opinion seems to have some basis in the 2005 McCreary County v. ACLU decision that required Kentucky courthouses to remove framed copies of the Ten Commandments. But upon closer analysis, this premise is quickly stripped of any validity. The key to the Kentucky decision was the view that the “purpose” for which the religious symbol was posted was to “promote religion.” This is clearly not the case with the Mojave Cross.

Whether those who disagree with the Court like it or not, the Mojave case is much more closely aligned with the Van Orden v. Perry case regarding a Ten Commandments monument on the grounds of Texas State Capital. The Texas decision, which came on the same day as its Kentucky counterpart, ruled that the 6 foot tall granite monument did not violate the First Amendment. The key vote came from Justice Stephen Breyer, who concluded that the Texas display served a, “mixed but primarily non-religious purpose.” This is clearly the case with the Mojave cross, which is a war memorial. The ruling was also based in part on the fact that the Texas monument had stood unchallenged for over 40years. The Mojave Cross was erected in 1934.

Case law or not, I find the stubborn objection to religious symbology to be quite disturbing. When people like Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, claim that “The decision lets Congress bypass the Constitution,” they strive to uphold their personal opinion — not the Constitution. The Establishment Clause of the First Amendment is intended to prevent the government from establishing a national religion or a preference for any given religion. It was never intended to eradicate any acknowledgement of religion on public property.

The real threat to religious freedom is not present in symbols posted on public property; it stems from those who seek to uphold the First Amendment by so narrowly defining the Establishment Clause that they forsake the Free Exercise Clause. Those who argue in favor of the removal of all religious symbols, typically do so based on the premise that the symbols are exclusionary.  But what’s odd is that their convoluted logic resorts to exclusion as a remedy. Any forced prohibition of display is obviously an encroachment on Free Exercise, so only through inclusion can we truly uphold freedom of religion.

News stories pertaining to the Mojave Cross cite that the case was initiated in response to a U.S. Forest Service denial of a request to erect a Buddhist shrine near the Cross site. These accounts have been refuted, but regardless, it’s impossible to address the claim through a case asking for the removal of another religious symbol. If the denial did actually occur, then the only valid action would be to seek remedy by asking the courts to provide equal treatment to other religions — to seek inclusion rather than exclusion — to allow the Buddhist shrine.

The Mojave Cross was clearly not erected by government in conflict with the First Amendment. It actually wasn’t erected by government. The Cross was erected by private citizens as a memorial for those who gave their lives in defense of our country. Never mind that the vast majority of those who died were probably Christians, whatever the case, there is a definitive “secular purpose” to the display. So, the monument has a secular purpose and was not established by the government, but rather by private citizens; in what possible way does this violate the Constitution?

The answer is simple — it doesn’t. A conflict would occur only if the war memorial was required to be removed based on the fact that it shares some meaning with a particular religion.  Such an action would be a gross violation of Free Exercise.

I’m left shaking my head over the continual disregard for the spirit of the Constitution evidenced by those who ostensibly uphold its provisions, but do so through a self-serving technical interpretation. So, until we all learn what our forefathers evidently already knew — that we’re all in this together — I’ll exercise my First Amendment rights and pray to my God that a time will come when all Americans are free to focus on the principles of our religious heritage: on what ties us all together rather than what tears us apart.

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