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Posted by David Sherman on Friday, July 10, 2009 at 16:28:22 :
In Reply to: Re: OT.Veterans Fight to Keep 75-yr. old Mojave Desert Memorial posted by jsiebert on Friday, July 10, 2009 at 15:45:53 :
I agree with the ACLU more often than not, mostly because they fight the unpopular 1st amendment fights, but this one doesn't make any sense. The plaintiff is a Catholic from Oregon who would have to go WAY out of his way to be offended by this cross. It may well be that the judge who ruled in his favor wasn't so much against religion on public land as he was against people building any sort of thing in the "wilderness". There are a lot of people who think all the old sheepherder's cabins, minder's cabins, old mines, abandoned powerwagons, ghost towns, 100 year old dumps, trail markers, swimming holes, cairns, and such should all be removed from public land in order to turn it back into some urbanite's fantasy of pristine wilderness. These sorts of people say things like "If we let one group put a cross up on a rock, pretty soon everybody will be doing it."
Hopefully the USSC will see it more reasonably. I think they could easily see that it's not a government "establishment" of religion. What's not so clear is if they could allow an unauthorized structure to remain on federal land. If they wanted an excuse to let it stay, I think they could turn to the Antiquities Act, which if I remember correctly, says that anything over 50 years old on public land is an historical artifact that can't be removed or destroyed. Obviously that hasn't stopped the Forest Circus from burning down most of the fire lookouts and trail cabins that the CCC built, but if somebody wanted to force the issue by taking them to court, I think destroying these things would be illegal.
So, the USSC could dodge the issue if they wanted to by saying that the cross must remain because it's now an historical artifact. After all, there are all kinds of pre-historic Native American religious symbols, artifacts, and sites on Federal Land and nobody's claiming they need to be destroyed under the First Amendment. On the contrary, they're protected by law because they're historical, which I think would be equally good reasoning for leaving the WWI cross in place. The nice thing about that reasoning is it also shuts up the people who say "If you let them get away with this, pretty soon everybody will be putting up crosses on public land!"
One thing for sure, "wilderness" or not, the Mojave desert is big, and the public lands all over the southwest are a lot bigger, and if the USSC says this cross has to be removed, a whole lot of others are going to start appearing all over the place and the government won't be able to stop it.
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