Supreme Court Engages Cross Memorial Case

I attended the oral arguments this morning before the Justices of the Supreme Court of the United States in a closely watched case involving the display of a cross - a memorial for war veterans - in the Mojave Desert in California.

As expected, the discussion was spirited with probing questions from the Justices.

After the arguments, I told members of the news media assembled outside the high court that this case gives the high court  an important opportunity to reject the plaintiff's standing in this case. To create a constitutional crisis out of a 8-foot cross honoring veterans is wrong. The Court has an important opportunity to clearly state that just because someone or some group is "offended" by the display is not enough to create a consitutional showdown.  The case is Salazar, Secretary of the Interior, et al., v. Buono. (08-472)

As you know, we have filed a critical amicus brief with the Supreme Court in this case - representing 15 members of Congress.

The fact is that the high court can bring an end to a troubling phenomenon that's plagued the federal court system for years ideologically motivated citizens and public interest groups search out Establishment Clause violations often in the form of a passive religious symbol or display of some sort and turn it into a federal case because they are offended.  Were hopeful the high court will overturn the appeals court decision and permit the war memorial cross to remain in place.

In our friend-of-the-court brief filed in this case, we contend that this challenge has no place in federal court.

This case is only the most extreme example of a phenomenon that has plagued the federal courts for the past three decades, the brief asserts.  Ideologically motivated citizens and public interest groups search out alleged Establishment Clause violations, almost always in the form of a passive religious symbol or display of some sort, and make a federal case out of offense at the display.

The brief also contends that those who are offended by government speech or displays should not be permitted to use an Establishment Clause claim to seek relief in federal court. 

The basis for standing is typically that the religious display offends the sensibilities of the plaintiffs, our brief asserts.  The offense may be characterized as an affront to religious values, or as one in which plaintiffs feel stigmatized as political or community outsiders.  But the sum and substance of the injury is that the display bothers the plaintiffs.  We contend that the lax rules governing who can sue under the Establishment Clause are not consistent with the Constitution and separation of powers doctrine.

We represent 15 members of the 111th Congress including House Minority Leader John Boehner.  The ACLJ also represents these members of the U.S. House of Representatives:  Todd Akin, Michele Bachmann, Roy Blunt, Eric Cantor, Randy Forbes, Scott Garrett, Walter Jones, Jim Jordan, Doug Lamborn, Thaddeus McCotter, Jeff Miller, Mike Pence, Joseph Pitts, and Joe Wilson. 

The ACLJ amicus brief is posted here.

This case comes just months after we obtained a victory from the Supreme Court in a case I argued where a Utah city accepted a monument of the Ten Commandments and displayed it in a city park.  In Pleasant Grove City v. Summum, the high court unanimously concluded in February that the city could constitutionally display the monument and reject another clearing the way for governments to accept permanent monuments of their choosing in public parks.  You can read more about that decision here. 

We'll find out the outcome of this Mojave Desert cross case in the months ahead when the Court will announce its decision. And, for the very latest, don't forget to listen to our daily radio broadcast, Jay Sekulow Live!