Wednesday
Apr282010
Supreme Court Allows Cross To Remain Standing In Mojave Desert
Wednesday, April 28, 2010 at 1:30PM
In a fiercely fractured ruling, the Supreme Court Wednesday favored Congress's plan to allow a cross to remain standing in the middle of the Mojave Desert by transferring the land to private hands. The trade of a 1-acre plot containing the cross for a 5-acre region in another area of the desert had been challenged by a retired Park Service officer who won a court battle in 2002 to have the cross removed. A district court had found that the cross violated the Establishment Clause of the Constitution and must therefore be removed.
Only three of the Court's nine Justices directly approved of the cross's new situation. Justice Anthony Kennedy, joined by Chief Justice John Roberts and in part by Justice Samuel Alito, wrote that the lower court dismissed Congress's effort to fix the problem too easily. Rather than looking at the land transfer as an attempt to "evade" the problem, Kennedy wrote that the lower court should examine whether the land transfer would successfully transform the land from public property to private property, meaning the cross could remain without giving an impression government favor to any particular religion. Justice Alito added separately that he thought the issue had been adequately litigated, and he would have directly approved the land transfer.
Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote separately to argue that the Park Service officer, despite visiting the area and seeing the cross on a regular basis, was not seriously injured by the cross's presence. Scalia said that no Court should never have taken up the case.
Justice John Paul Stevens, disagreeing with the Court's conclusion, wrote that the constitutional problem would not be resolved even if the land were transferred. A reasonable observer, Stevens wrote, would not know that the ownership of the land had changed and might assume that this plot of land, sitting in the middle of a large government-owned preserve, was also government land. Further, he argued, Congress's motivation in trading the land was to preserve the cross, expanding on the constitutional violation. Stevens wrote that the land transfer should have been stopped and the order to remove the cross maintained. He was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Writing only for himself, Justice Steven Breyer pointed out in a 6-page opinion that the lower court had simply ordered the cross be removed. Because Congress set up the land transfer without challenging that court order, the order was still in effect and the cross should be removed.
Only three of the Court's nine Justices directly approved of the cross's new situation. Justice Anthony Kennedy, joined by Chief Justice John Roberts and in part by Justice Samuel Alito, wrote that the lower court dismissed Congress's effort to fix the problem too easily. Rather than looking at the land transfer as an attempt to "evade" the problem, Kennedy wrote that the lower court should examine whether the land transfer would successfully transform the land from public property to private property, meaning the cross could remain without giving an impression government favor to any particular religion. Justice Alito added separately that he thought the issue had been adequately litigated, and he would have directly approved the land transfer.
Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote separately to argue that the Park Service officer, despite visiting the area and seeing the cross on a regular basis, was not seriously injured by the cross's presence. Scalia said that no Court should never have taken up the case.
Justice John Paul Stevens, disagreeing with the Court's conclusion, wrote that the constitutional problem would not be resolved even if the land were transferred. A reasonable observer, Stevens wrote, would not know that the ownership of the land had changed and might assume that this plot of land, sitting in the middle of a large government-owned preserve, was also government land. Further, he argued, Congress's motivation in trading the land was to preserve the cross, expanding on the constitutional violation. Stevens wrote that the land transfer should have been stopped and the order to remove the cross maintained. He was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Writing only for himself, Justice Steven Breyer pointed out in a 6-page opinion that the lower court had simply ordered the cross be removed. Because Congress set up the land transfer without challenging that court order, the order was still in effect and the cross should be removed.
Reader Comments (1)
I hold the biased and ignoant Antonin Scalia in contempt and order his removal from the bench.