Splitting along predictable lines, the Supreme Court voted 5-4 this week to let stand the Mojave cross honoring fallen war veterans. The decision is being hailed as a major shift in strict church-state separation. But is it really?
And of even more significance, what does this ruling say about what the government can and can’t do in erecting religious monuments on public land?
Experts reading the tea leaves of the opinion had different interpretations.
Jay Sekulow of the conservative American Center for Law and Justice saw the ruling as a green light for religious symbols on public land, whether erected by the government itself or by land transfers to private entities.
“If you look at this case, coupled with the Ten Commandments case,” he said, “it’s becoming very clear that the public display of monuments, even religious monuments, is not a per se violation of the Constitution.”
But Peter Eliasberg of the ACLU disagreed, contending that what might be permissible for a monument in place for 70 years would not be for a relatively new monument.
“I don’t see this as any type of broad pronouncement,” Eliasberg said.
University of Michigan law professor Douglas Laycock, who filed a brief urging the court to uphold the order to dismantle the cross, noted that Wednesday’s ruling did not resolve the big question waiting to be answered: whether the government can itself place a religious symbol on government land.
“The real issue, whether it’s crosses or any other kind of display, is postponed until the next case,” said Laycock, adding that he is “not optimistic about how the next case is going to come out.”
I’m inclined to agree with Eliasberg and Laycock, though not in principle. The specifics of this case were so unique, and the decision so significantly tied to those facts that it’s difficult to see how this decision could apply to the future erection of, for example, the Ten Commandments outside of a courthouse.
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