A fractured Supreme Court yesterday decided to remand–or send back to the lower court–the contentious case involving a congressional “land swap” that allowed the Veterans of Foreign Wars to keep a cross up in the Mojave National Preserve. Justice Anthony Kennedy wrote the plurality opinion that noted that the federal district court that initially decided the case should have reviewed more carefully all the “facts of circumstances” surrounding the congressional action to trade the acre where the cross had been erected for a few less visible acres elsewhere.

Frankly, Jay, it seemed like Justice Kennedy and four of his colleagues were virtually ordering the lower court to find some reason (I’d say, excuse) to find that this cross was not merely a Christian symbol–that it symbolized the service of all veterans of World War I.  I find this argument highly unpersuasive. The cross is a Christian symbol.  It has no meaning (except under some historical circumstances a negative meaning) for members of the Jewish, Muslim, or Hindu faith.  It signifies nothing to humanists or non-believers, either.  Therefore, it cannot be the emblematic representation of the sacrifice of all veterans.

Moreover, the Congress members action to make this deal was only one more sad example of a “high five sign for Jesus”, its annoying impetus to do whatever looks good for their predominantly Christian constituencies.  If the object that had been illegally erected 70 years ago on what was then clearly government property had been a Buddhist shrine or a secular peace garden or any one of a thousand other symbols, Congress would not have lifted a finger. 

The lawyer who brought this case for the ACLU in Southern California noted that he still hopes to prevail in the lower court.  I certainly hope he does.  This will require that the judge there acknowledges the evidence supporting the clear preferential treatment that has long been accorded this religious symbol at this site in this desert and adds a dollop of commonsense.

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