News reports are stating that the Mojave cross at issue in the Supreme Court’s recent decision was stolen late Sunday or early Monday. This blog site has photos showing the cross before and after the removal.

A little over a year ago, I visited the Mojave cross.  It is about 170 east of Los Angeles, and about 70 miles from Las Vegas.  It is in the middle of nowhere in eastern California.  Whoever removed the cross could have done so with few people observing (in fact, anyone would have to go way out of their way to be offended by this cross).

This is a tragic turn of events. No one should take matters into his own hands and eradicate this memorial to our fallen World War I veterans.  The veterans groups have said they will rebuild this monument, and they should.  People of good will need to persevere against these acts of vandalism and censorship.

Courtesy: Scott Wright

Courtesy: Scott Wright

The Supreme Court on Wednesday handed down its decision in the Mojave cross case, Salazar v. Buono. The decision retains (at least for now) the cross erected by World War I veterans to honor their fallen brothers in the Mojave National Monument.  Many have written insightful commentary on the decision here, here and here.

But university officials should learn from this case that historically, the point of the Establishment Clause was to stop government coercion of its citizens to conform their thinking to the prevailing state orthodoxy.   Universities should be teaching students our best American constitutional traditions – that the government may not force people to believe a certain way, or punish them because they speak out against what the government supports. Also, universities should be teaching students that they should tolerate speech they disagree with and that “being offended” by what someone else says does not give you the right to censor that person.

Instead, I am afraid that universities are training students that it is OK for the government to force them to believe a certain way, and that the Establishment Clause mainly and appropriately involves sensitive people being offended by passive religious symbols.  The Mojave cross case, when considered in light of  life today for university students, shows a huge example of using the First Amendment to strain the “gnat” of passive religious displays, while the rest of us swallow (tolerate)  the  massive “camel” of coercive university policies that violate students’ constitutional rights (“straining the gnat and swallowing the camel” are the words of Jesus from Matthew 23:24, and I hope no one is offended that I quoted Him).

When the the First Congress drafted the First Amendment in 1789 to prevent Congress from establishing a religion, the members of Congress had plenty of direct experience with what state-established religions actually did.  Established churches sustained their orthodoxy by formal laws forcing people to pay “tithes” to the state church, prohibiting “blasphemy” of the doctrines of the state church, forcing preachers to be licensed by the state church, requiring government officials to swear oaths of fidelity, conformity and adherence to the doctrines of the state church, as well as forcing students to learn the doctrines of the state church in school.   See Justice Scalia’s excellent summary on the historical realities of what established churches did in his dissenting opinion in  Lee v. Weisman, 505 U.S. 577, 640-42 (1992).

So, when one surveys current American culture, are there public entities that today use the coercive legal mechanisms that established churches once used to enforce their orthodoxies? Yes! Today’s American universities!

Do not be distracted by the fact that university officials and their policies do not use religious language or conduct religious ceremonies with candles, incense and liturgy.  Focus on what established churches did,and how they parallel what universities are doing today:

- blasphemy laws (intended to punish those speaking against the doctrines of the state church) compared with speech codes (intended to punish those who use “hate speech”);

-  mandatory tithing to the state church (forcing people to fund advocacy of beliefs they disagree with) compared with mandatory student fees (universities forcing people to fund others’ advocacy of ideas they oppose);

-   preacher licenses (state church regulates speakers who advocate ideas in conflict with authorized views) compared with speech zones (university regulation of speakers advocating ideas in conflict with prevailing campus views);

- mandatory church attendance (forcing people to learn the doctrines of the state church) compared with mandatory “diversity training” (compelling students to change their wrong thinking to “correct” dogmas);

- doctrinal oaths (citizens  and officials swore oaths to support the doctrines of the state church) compared with nondiscrimination policies (student groups promise in writing to conform to university-defined “diversity”).

When I look at life experienced today by students on American university campuses, I am greatly concerned and saddened that universities are teaching their students that it is permissible for the government to punish them for saying the wrong thing, for the government to force student groups to promise to allow people who disagree with their views to join and run their groups, for the government to force people to contribute money to private groups advocating ideas the “contributors” don’t support, for the government to determine if and when and where private groups can express their views on campus and for the government to force students to attend classes where the instructors’ purpose is to convert the students away from their “narrow, obsolete” beliefs to “right, progressive thinking.”

Additionally, at these same schools, students are learning that the government violates the Establishment Clause if it allows military veterans to honor their fallen comrades by placing a cross on government land and that it is OK to be highly offended by religious expression and to demand its censorship.  What a warped imbalance! Universities are not training our future leaders well when the students experience daily on campus this skewed perspective on civil liberties, freedom of speech, right of conscience and religious liberties.  When it comes to a correct understanding of the First Amendment and the Establishment Clause, universities need to stop straining the gnat and swallowing the camel.

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Is Justice Anthony Kennedy writing the decision in Salazar v. Buono, the case concerning an Establishment Clause challenge to the cross built on federal land in the Mojave Desert?  How will this case impact the First Amendment rights of students on university campuses, and the ability of the universities to acknowledge our nation’s religious heritage?  And what is this “Supreme Court Bingo?”

The Supreme Court heard oral arguments on October 7, 2009 in the case concerning an objection to the fact that World War I veterans built a cross on federal land to honor their fallen comrades as the living healed from the horrors of war in the peace and isolation of the Mojave Desert in southeastern California, where the Mojave National Preserve is located.  The issues in the case on whether an “offended observer,” represented by the ACLU, has suffered sufficient harm by the cross in its federal location, to bring a lawsuit to remove the cross from government land.  The case also presents the question of whether the land swap between Congress and the Veterans of Foreign Wars, which traded the land where the cross is for another piece of land owned by the veterans’ group, eliminates any possible constitutional violation.

These issues spring up on university campuses when someone offended by Christian symbols objects and demands that the governmentremove  the “offensive” symbol.  For example, people complained about a cross in the Wren Chapel at William and Mary, one of the oldest state universities in the United States.

Although the Supreme Court heard oral arguments in the case on October 7, 2009, the high court has not yet handed down the decision as of April 26.  This is a pretty long time for the Supreme Court.  It also means we can play a game of “Supreme Court Bingo” to see if we can predict the author of the upcoming opinion.   There is some complexity to this analysis, but basically it entails taking the list of cases argued in October 2009, and comparing that with the list of decisions the Supreme Court has handed down. What it reveals is that the only case heard in October that the Supreme Court has not handed down is Salazar v. Buono.  It also reveals that every justice has written an opinion for a case heard in the October sitting, except for Justice Anthony Kennedy.  Although this is not absolutely accurate in predicting the author of a specific opinion, I think the likelihood is high that Justice Kennedy is writing the opinion in Salazar, the Mojave cross case.

Now, the big question is, what does it mean if Justice Kennedy is writing the decision.  He is the “swing” justice in the middle of the Court ideologically, who frequently supplies the fifth and deciding vote in many cases.  From the tenor of the oral arguments last October, I think the most likely ruling will say two major things:

(1) The Court will leave for another day the question of whether “offended observers” have standing under Article III of the Constitution to challenge governmental actions and displays that they claim violate the Establishment Clause,  because the federal government raised this issue too late in the proceedings; and

(2) The swap of the land containing the cross between the U.S. government and the Veterans of Foreign Wars eliminated any possible violation of the Establishment Clause.

This would mean that the Mojave cross would stay up, and the government would remove the plywood box now encasing it.  This would be a victory, but a narrow one based on the specific facts of this case. This will leave unresolved the question of whether “offended observers” can bring lawsuits challenging government actions or displays the observers claim violate the Establishment Clause.

The Supreme Court Court could hand down the Salazar decision anytime between now and the end of the term, but as early as Tuesday or Wednesday, April 27 or 28.  Stay tuned.