High court displays hypocrisy in Mojave cross case

Saturday, May 1, 2010

PERHAPS THE BEST thing that could be said about the Supreme Court's decision Wednesday involving a cross that sits on federal property is that the court essentially issued no decision at all.

A less kind assessment: The justices who joined the controlling opinion engaged in a breathtaking act of hypocrisy in assessing the case.

The cross was erected in the 1930s by the Veterans of Foreign Wars, on what would become the Mojave National Preserve, as a tribute to U.S. soldiers who died in World War I. A former assistant superintendent at the reserve challenged the placement in 2001, arguing that the display should be forbidden because the government should not be in the business of "respecting an establishment of religion." The First Amendment challenge prevailed in the lower courts; Congress responded by authorizing a land swap with the VFW, thus converting the one-acre parcel surrounding the cross into private property, but designating the cross as a national memorial and threatening to take back the property if the VFW failed to maintain it as such. A California appeals court blocked the swap, labeling it a ruse to avert federal court jurisdiction.

On Wednesday, Justice Anthony M. Kennedy, writing for a three-justice plurality, disagreed. Although he did not order a particular result, he sent the case back to the trial court to determine whether the land swap erases the constitutionally impermissible impression that the government is favoring one religion over another. He used the opinion to castigate the California court for failing to respect lawmakers' wishes. "Congress's prerogative to balance opposing interests and its institutional competence to do so provide one of the principal reasons for deference to its policy determinations," Justice Kennedy wrote.

The hypocrisy was not lost on Justice John Paul Stevens, who authored a dissent noting that his conservative colleagues have not always deferred to Congress's wisdom. Only months ago, a bloc of conservative justices refused to defer to Congress in the Citizens United case, which challenged congressionally enacted limits on corporate money in federal election campaigns. Lawmakers spent years discussing campaign finance reform and months debating specific provisions in the final proposal. Regarding the cross, Congress never held a committee hearing or engaged in a floor debate, and it did not vote directly on the measure, which was buried in a must-pass appropriations bill.

Although he was in the minority, Justice Stevens also got the better of the substantive arguments on the land swap. As we've written before, we don't think the original question is so clear; the cross seems as much historical monument as religious statement. But if its position on federal land was unacceptable, the congressional ruse does not fix the problem. As Justice Stevens noted, the government's extraordinary efforts to preserve the cross by designating it as a memorial, preventing the use of federal funds to tear it down and then orchestrating the land swap is proof of endorsement. The federal trial court in California that will reconsider the Mojave case would do well to follow Justice Stevens's road map.

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