Such a Petty, Mean-Spirited Lawsuit
By Jerry A. Kane
Bend your ears boys and girls for another of Baron von Münch-Kane’s once-spun yarns and twice-told tales.
“Krebs went to the war from a Methodist college in Kansas,” and now the highest court in the land has taken up the case of an 8-foot white cross atop Sunrise Rock memorializing U.S. soldiers who fought in that war.
After World War I, several veterans moved to the Californian desert as a respite for their emotional and physical wounds. In 1934, they erected the white cross memorial to honor their fallen comrades who paid the ultimate sacrifice for their country.
They chose the memorial site because the sun casts a shadow on Sunrise Rock at a certain time of day that resembles a WWI doughboy. The memorial stood serene for more than 75 years until the Park Service was asked and refused to build a Buddhist sanctuary nearby.
That’s when Frank Buono, a retired National Park Service employee and Public Employees for Environmental Responsibility (PEER) board member, got his knickers in a knot and decided the government had violated the Constitution’s Establishment Clause by favoring one religion over another.
Having firmly affixed his Catholic faith to his sleeve, the PEER zealot smartly marched over to the ACLU (American Communist Lawyer’s Union), and they joined together in a lawsuit to tear down the Mojave Desert Veterans Memorial.
After the U.S. Government acquired the land on which the memorial sits as part of the Mojave Desert Federal Preserve, Congress designated Sunrise Rock a national memorial and barred its dismantling. A year later, Congress voted to trade the acre of land containing the memorial to the veterans, who had maintained it for decades, for five acres.
Even though public military memorials and cemeteries have been adorned for decades with crosses and religious symbols and the one-for-five acre deal satisfied both the government and the veterans, the ire of the Park Service pantywaist and surrogate remained. They declared the deal intolerable, and persisted in filing motions to tear down the memorial and overturn the land transfer.
In 2000, the Southern California ACLU announced the cross would be down within the next few months, but Congress voted not to allocate federal funds to remove it, an action that drew a lawsuit from the ACLU.
In 2002, a federal district court ruled that the memorial violated the “wall of separation” that the Constitution maintains between church and state; consequently, Congress attempted to transfer the land underneath the cross to a local chapter of the Veterans of Foreign Wars by using a clause in the Department of Defense budget, but the district court ruled against it.
In 2004, the Ninth Circuit Court of Appeals upheld the district court’s ruling to remove the cross in spite of numerous appeals from the U.S. Justice Department.
As if to commemorate an ACLU victory, a federal judge ordered the cross covered and hidden from view while the case is on appeal. A curious-looking plywood box, resembling a condemned building, now sits atop a desolate rock symbolizing the triumph of one man’s intolerance over the sacrifices of those who inspired the memorial.
Currently, the Supreme Court’s nine justices are divided on the issue along progressive and conservative lines. Progressive justices view the Constitution as a living, breathing document emanating meanings from ethereal penumbras of the actual text, which often contradict the plain understanding of the words themselves; and conservative justices focus on a strict interpretation of the text of the Constitution based on the originally intended meaning of the text.
When it comes to the Establishment Clause, progressive justices have interpreted the emanations from the clause to mean government hostility toward religion in general and Christianity in particular; whereas conservative justices have interpreted the clause to mean government neutrality toward religion and accommodation for Christianity in particular.
However, the final battle won’t be won until the Supreme Court decides on the constitutionality of Ninth Circuit’s ruling, and that could take weeks. It’s also quite possible the high court will ignore the broader question of whether the presence of the cross on a federal preserve establishes a religion, and will address the narrower question of whether Congress was right to transfer the land on which the cross sits to private ownership.
Clearly, the PEER gent and the ACLU know the military’s long history of using a cross as marker for the war dead of all faiths and as a symbol to represent honor, courage, and sacrifice. They have not employed such a Herculean effort for nearly ten years just to tear down an unadorned cross in some remote area of the Mojave Desert; theirs is a sinister purpose, to put an end to the principles of religious liberty as grounded in the First Amendment of the U.S. Constitution.
“So long as the people do not care to exercise their freedom, those who wish to tyrannize will do so; for tyrants are active and ardent, and will devote themselves in the name of any number of gods, religious and otherwise, to put shackles upon sleeping men.”
Voltaire’s words combined with those of the Preamble to the California Constitution, “We, the People of the State of California, grateful to Almighty God for our freedom,” serve as a sad reminder for the cosmic irony in this a petty, mean-spirited lawsuit.