Beware. In battles over religious displays on government property, such as in the U.S. Supreme Court’s most recent church-state decision, a win for a religious display is not a win for religion. In Salazar v. Buono, the Court reviewed a challenge to a statute that would transfer a cross and the government land on which it stands to a private party. The lower courts had stopped the transfer, holding that it was an attempt to keep the stand-alone cross atop Sunrise Rock that would continue the underlying constitutional violation. 

By a vote of 5-4, the Supreme Court reversed. The Court was severely fractured—the five in the majority having four different opinions and the dissenters having two — and the case is not over (it was remanded for further consideration). The case provides little guidance for lower courts that must decide other cases about religious displays on government property. Instead, led by a plurality decision by Associate Justice Anthony Kennedy, the Court gives us another tangled Establishment Clause decision that lowers the wall of separation and devalues religious symbols.

On a positive note, the Court (with the exception of Associate Justices Antonin Scalia and Clarence Thomas) rejected the argument that plaintiff Frank Buono, a Roman Catholic, lacked standing to challenge the display of a symbol of his own faith on public lands. The BJC and other amici joined Mr. Buono in arguing against the further erosion of standing in Establishment Clause cases. Unfortunately, there is little else to commend in the remainder of the plurality opinion. It is widely agreed that the First Amendment’s religion clauses protect the authentic expression of religion by individuals and faith communities. It is less commonly understood that one means of that protection is through the Establishment Clause’s prohibition on government promotion or endorsement of religion.

In church-state battles, there are always strong voices from the Christian majority who fight mightily to have the government advance religion, or at least advance the most popular religious symbols. In public debates, they undermine the separation of religion and government, and by implication the protection for religion it provides, often by asserting misguided arguments to achieve their goals. Unfortunately, Justice Kennedy’s opinion (See page 1) in Salazar v. Buono is now Exhibit A in this phenomenon.  First, Justice Kennedy makes a questionable analogy to the Ten Commandments monument that was allowed to remain on the Texas State Capitol grounds in the Court’s 2005 Van Orden v. Perry decision. Both displays had a decades-long history, but unlike the monument in Texas, the cross in this case stood alone, absent any markings or inclusion in a larger display that may alter its apparent message. Without attention to the physical surroundings of the display, emphasis on the bare passage of time threatens to create a “squatters’ rights” exception in Establish-ment Clause jurisprudence.

More disturbing, he writes that the cross “is not merely a reaffirmation of Christian beliefs” but a symbol “often used to honor and respect” heroism. He added: “Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.” Such a statement ignores the value of government staying out of purely religious disputes, which reflects an important concern in Establishment Clause cases. As former Associate Justice Sandra Day O’Connor observed in her concurring opinion in McCreary Co. v. ACLU: “Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices.”

Those who would like to preserve the full expression of Christianity to the non-governmental sphere can thank the most senior (and soon-to-be former) member of the Court, dissenting Associate Justice John Paul Stevens, who made plain what we all know: “The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith.” The World War II veteran, joined by Associate Justices Ruth Bader Ginsburg and Sonia Sotomayor, added, “I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message.”

Those who would look to the government for religious expressions of the majority faith found a friend in Justice Kennedy and a resulting victory in the Buono case. But it is a pyrrhic victory. In their zeal to display Christianity’s most sacred symbol on government property, they have received an opinion from the highest level of government that redefines the distinctly Christian message of the cross.