Today, the Supreme Court is hearing oral argument in the case of Salazar v. Buono, a case involving the display of a cross on top of Sunrise Rock in the Mojave National Preserve, which is federal property. A former employee of the Preserve sued in federal court challenging the legality of the display, arguing that the religious symbol violated the Establishment Clause of the First Amendment.  The district court agreed and ordered that the display be taken down.  So far, so good.

But in order to sidestep the ruling, Congress swapped Sunrise Rock—but none of the land around it—with a private party who agreed to maintain the cross.  Buono asked the Court to enforce its order prohibiting the display of the cross and also asked the court to prohibit the land swap.  The court agreed as to both and on appeal to the 9th Circuit, the district court’s order was upheld.

People For the American Way Foundation joined a brief filed by Americans United for the Separation of Church and State and other religious and secular non-profits on behalf of Buono to point out that objections to such religious displays on public land are more than the just general grievances.  Rather, the effects of an unconstitutional government display of religion inflict real and significant harm that cannot be easily ignored. 

Government-sponsored religious symbols are potent forms of speech that can have real, palpable effects on people who are subjected to them. The harm from them is not that they evoke mere distaste, displeasure, or even disgust. It is that they deprive citizens of the use and enjoyment of public lands, because using a public facility where the government has chosen to erect a monument to one faith stigmatizes nonadherents as second-class citizens, while demeaning the faith of adherents by coopting what is sacred.

Also, these harmful effects cannot be fixed by a contractual land transfer of a particular parcel of land, particularly when the parcel is entirely enclosed within a federal preserve and where the government has taken no steps to disassociate itself from the display[].  Nothing was done at all to make it clear that the display is no longer on government land.  As such, the transfer cannot be seen as anything other than a cheap strategy designed solely to preserve the display of the cross.  Allowing a scheme like that to cure the unconstitutionality of a government act wouldn’t correct the wrong—it would perpetuate it.