Salazar v. Buono: When Is a Cross Not a Cross?

UPDATED - the original inexplicably dropped the last two graphs of my post. My apologies for the computer gnomes.

One thing I confess I enjoy about some conservative commentators is that they never, ever sing out of tune. You turn to their analysis and you know what awaits you, the tired arguments, the links to Fox News, the misunderstood history, the sweeping indictments. Mind you, there are plenty of conservatives who intrigue, who are not afraid to sing harmony, sometimes even a descant, or even to question the suppositions of what is generally being pedaled. David Frum, Michael Gerson, Rick Garnett, Peggy Noonan and Peter Berkowitz are all conservative thinkers who surprise, engage, and educate with their arguments and their erudition. Unfortunately, most conservative commentary on the recent Supreme Court decision in Salazar v. Buono has been not just predictable, but juvenile.

In Salazar v. Buono, the Court was asked to decide whether a cross in the Mojave Desert, erected 75 years ago as a memorial to those killed in World War I, violated the Establishment Clause. There were six separate opinions in the case, but the governing decision was that of Justice Anthony Kennedy who wrote that the cross is "not merely a reaffirmation of Christian beliefs." He continued: "Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in the foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten." In dissent, Justice John Paul Stevens wrote that the cross "is a symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith."

So, which of the two jurists better exemplifies secularization? The one who insists that the cross not be displayed on public land because it truly is of religious significance, or the one who permits the display of the cross because it has been gutted of its religious significance? Even if we like the outcome, we must deplore Kennedy’s reasoning which tracks with the Court’s rulings on nativity displays on public lands at Christmas. The creche passes constitutional muster if it is yoked with Santa and a menorah, that is, if the distinctive claim that Christmas makes (that God came down from Heaven and was born of a woman) is not emphasized but the invitation to generic jolliness (Happy Holidays Santa!) is emphasized. Call me silly, but such reasoning does not seem to me to be much of a victory for the Christian faith.

Yet, over at First Things, their "Gateway Pundit," Jim Hoft, begins his analysis "The ACLU went down in defeat today. The Supreme Court ruled that the Mojave Cross can stay." Oh, well, if the ACLU is upset, it must be a good thing – huh? He then adds that the decision was a "huge defeat for American communists." Did I miss the amicus brief from the American Communist Party? Is there still an American Communist Party? And, yes, there is the obligatory link to Fox News. With commentary like this, the magazine will need to change its name to Trivial Things.

Not to be outdone, over at the American Principles Project blog, the inimitable Thomas Peters also applauds the decision, writing, "The court has once again narrowly split in favor of the constitutionally-sound side of the question posed to it. Four justices - including the one nominated by Obama - voted against this lone cross in the middle of the dessert." Maybe if the "lone cross" had been in the middle of the appetizer or the soup, the Obama-nominated justice might have voted for it. Typos aside, which American principle in Kennedy’s decision does the APP wish to applaud? Maybe they see this as a step towards an improved jurisprudence, but then they should make that case, not simply provide a knee-jerk defence of anything an Obama-nominated justice votes against. As I say, juvenile.

Here is a stab at what the conservatives might have said in this case. The Court might simply have noted that in the 1930’s, when the memorial to World War I soldiers was built, it was common to call America a "Christian country" and so such symbolism was to be expected, that this is part of our history and the first step of any assault on human dignity and freedom is the re-writing of history, that we would not allow a new display that was so specifically sectarian but there is no reason to go back into history and re-write it nor disturb its memorials. We need not say that Paul Revere saw two lanterns in the steeple of a tall building in Boston: He saw them in the steeple of the Old North Church. We need not drop the "Reverend" from our descriptions of patriot John Witherspoon. We need not efface the Celtic Cross at Gettysburg, which commemorates the "Fighting Irish" brigade.

I suspect many liberals could support such an argument too. Every battle need not be Armageddon, and not every cause espoused or opposed by the ACLU is a good cause, and, yes, the Supreme Court’s jurisprudence on the Establishment Clause is in an ideological cul-de-sac from which it does not know how to emerge. There is much to discuss in all this, but it would be nice to find some smart, thoughtful conservatives, especially religious conservatives, taking a whack at it instead of the insta-punditry offered by the shills.