Supreme Court majority guilty of judicial activism

May 21, 2010|By ALLAN POWELL

On April 28, the U.S. Supreme Court handed down its ruling in Salazar v. Buono involving the propriety of using a land-swap maneuver (or more properly subterfuge) to permit a cross to remain on public property. There is concern that this case may set a precedent for future cases involving crosses and other religious symbols situated on public property.

This 6-foot, 6-inch cross is located on a one-acre plot of land within a huge federal park. It was spared from removal by transferring ownership of the plot to a private organization. This legal sleight of hand has been used in other cases as a means to circumvent constitutional restraints.

This conservative majority has no reason to be proud of its attempts to make religious symbols more visible by a weakening of constitutional requirements. They have betrayed their own oft- stated objections to judicial activism by creating their own brand. They commit the cardinal sin of "judiciating law" (as compared to legislating law) by redefining the terms of the debate.


Their argument that the cross may appear on public property because it is not an exclusively religious symbol is a stretch - or outright abuse - of the meaning of that symbol. Popular use of crosses as grave markers for slain veterans in no way alters the religious perceptions of what viewers experience when they see a cross. This is the same distortions used by those who want manger scenes in public parks. The presence of a Santa Claus and some deer does not reduce the scene to a mere "seasonal symbol."

Are there not enough church and private property sites for the many religious organizations? Numerous houses of worship exist in the United States. When other private sites are added, the visibility of religious symbols is enormous. Why the constant pressure to expand their domain on display to courthouses and public parks to leach out some small aura of approval by the government? Why would a healthy, functioning religion submit to the characterization of being merely a "seasonal" or quasi-secular symbol?

This case was very simple. All that the justices had to do was ask two simple questions: What was it? and where was it? If the symbols were religious and located on public property, it is constitutionally impermissible. This should have been settled directly and clearly because there are other, similar cases to be judged.

In addition to reducing the centrality of the cross and its uniquely religious usage, there was a humorless attempt by Justice Alito to play down the importance of this case: "It is likely that the cross was seen by more rattlesnakes than humans." Had he forgotten that the huge Mount Soledad Easter Cross in San Diego has yet to be settled? This is another land swap case in the center of town. It really doesn't matter how many people view the cross - numbers have no bearing on the constitutional question.

Justice Kennedy could be charged with misstating what the case is about. "The Constitution does not oblige government to avoid any public acknowledgment of religions role in society. The goal of avoiding government endorsement does not require eradication of all religious symbols in the public realm". But this is not what those who believe in separation of church and state expect. What they expect is the removal of religious symbols from public property.

The distinction between "public realm" and "public property" is simple and important. There is no interest in removing religion or religious symbols from society at large.

What is most disappointing about this conservative majority is their subservience to ideology while denying this fact. This was actually a simple case of a legal gimmick to take an end run around the Constitution. While the conservative base was pleased, the decision was questionable.

This decision will be interpreted as an open invitation to place religious symbols on public property. They did not serve us well as the court of last resort.

Allan Powell is a professor emeritus of philosophy at Hagerstown Community College.

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