Supreme Court overturns objection to cross on public land

By Robert Barnes
Washington Post Staff Writer
Thursday, April 29, 2010

A splintered Supreme Court displayed its deep divisions over the separation of church and state Wednesday, with the court's prevailing conservatives signaling a broader openness to the idea that the Constitution does not require the removal of religious symbols from public land.

A 5 to 4 decision by the court overturns a federal judge's objection to a white cross erected more than 75 years ago on a stretch of the Mojave Desert to honor the dead of World War I.

Six justices explained their reasoning in writing, often using stirring rhetoric or emotional images of sacrifice and faith to describe how religion can both honor the nation's dead and divide a pluralistic nation.

The bottom line, Justice Anthony M. Kennedy wrote, is that "the Constitution does not oblige government to avoid any public acknowledgment of religion's role in society." Although joined in full only by Chief Justice John G. Roberts Jr., Kennedy's opinion will be closely parsed as courts across the country consider challenges to religious displays in public settings.

But it is a narrow ruling, offering less guidance for the future than a stark acknowledgment of the fundamental differences between the court's most consistent conservatives and its liberals in drawing the line between government accommodation of religion versus an endorsement of religion.

To Kennedy, the cross "is not merely a reaffirmation of Christian beliefs" but a symbol "often used to honor and respect" heroism.

He added: "Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

Dissenting Justice John Paul Stevens said: "The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith."

Still, despite strong language in Kennedy's opinion, the decision did little to clarify the court's murky jurisprudence about how government can accommodate religious symbols without violating the Constitution's prohibition on the endorsement of religion. It seems likely that once the legal battles are over, the 6 1/2 -foot cross standing atop an outcropping called Sunrise Rock will remain, although that was not settled by the decision.

The five most consistently conservative justices seem tolerant, based on Wednesday's decision and past rulings, of religious symbols on public land, but the court's four liberals seem deeply skeptical. The lineup does not bode well for other challenges to religious symbols, such as San Diego's 29-foot cross and war memorial on Mount Soledad.

But even the five who agreed Wednesday to return the case to lower courts split three ways in their reasoning.

"To date, the court's jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules," Kennedy wrote.

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