The cross is a sacred Christian symbol. Most commonly, it marks places of worship, but it also is displayed by Christians in myriad other ways. Recently the cross has also become a focal point of litigation challenging the constitutionality of religious displays on public lands.

Generally, the BJC opposes government displays of crosses. Government sponsored religious displays wrongly assume religion needs the assistance of government to flourish, leaves religion vulnerable to the changing political whims of public officials and invites the misuse of religion for political purposes. We have long maintained that religious symbols are best left to persons of faith.

Three cross cases are now in various stages of the federal court system, and any one may result in the next landmark decision on government-sponsored religious displays.....

This fall, the U.S. Supreme Court hears arguments in Salazar v. Buono. This case arises from a dispute over a large cross on land owned by the National Park Service in California’s Mojave National Preserve. When the Park Service refused to allow Buddhists to erect a shrine near the cross and announced plans to remove the cross, Congress tried to cure an Establishment Clause problem by transferring the portion of land where the cross stood to a private party.

Frank Buono, a retired Park Service employee, sued and ultimately prevailed in the 9th U.S. Circuit Court of Appeals, which held that Congress could not avoid the constitutional problem by cutting a “donut-sized hole” in a vast expanse of federal land. The Supreme Court will consider whether Congress’s actions violated the Establishment Clause, and whether Buono had legal standing to bring the case.

Trunk v. City of San Diego, currently pending in the 9th Circuit, involves a cross sitting prominently atop a veterans’ memorial on Mt. Soledad, near San Diego, Calif. As in Buono, Congress got involved after a federal judge ordered the cross’s removal and enacted legislation to transfer the land. More litigation followed, and the district court ruled that Congress’s primary purpose was to preserve the site as a veterans’ memorial, not to advance or favor a particular religion. It held further that displaying a cross is not inherently religious, and that the cross has the primary effect of promoting patriotism, not religion.

Another cross case, American Atheists, Inc. v. Duncan, is under consideration in the 10th U.S. Circuit Court of Appeals. It arises from a privately funded program in Utah where crosses are erected in memory of state Highway Patrol troopers who died in the line of duty. Because some of the crosses are located on public land, American Atheists sued, requesting that the crosses be removed or have the Highway Patrol’s logo excised from them. A federal judge ruled that the crosses were not inherently religious, but were instead an internationally recognized symbol used to honor the deceased. This stark ruling was met with skepticism during oral arguments in the 10th Circuit, where one judge noted that Utah’s saying that the crosses are not religious does not necessarily make it so.

The impact of these cases will depend on how the courts – ultimately, the U.S. Supreme Court – answer some key questions. Two 2005 decisions, McCreary County, Ky. v. ACLU and Van Orden v. Perry, both decided 5-4, established that Ten Commandments monument displays on government property are constitutional in limited circumstances.

How, if at all, are cross displays different from Ten Commandments monument displays? Will the Court further restrict standing rules to prevent having to rule on the merits in Buono? Will the Court distinguish between individual (as in the Utah case) and corporate (as in the two California cases) cross markers? Will the Court, like the federal judge in Duncan, weigh in on the meaning of the cross?

These questions will be in play when the High Court hears Buono, but due to changes on the Court, larger issues about Establishment Clause jurisprudence are also implicated. Since the Ten Commandments cases in 2005, Justice Sandra Day O’Connor has been replaced by Justice Samuel Alito. Constitutional scholars have speculated that Justice Alito could provide a fifth vote to sharply curtail Establishment Clause protections. It remains to be seen if that will occur, or if the Court will continue to interpret the Establishment Clause as a strong guarantee of religious liberty.