When is a cross not a "cross"?

This week the Supreme Court heard oral argument in Salazar v. Buono, a case involving a challenge to a 75-year-old memorial to World War I soldiers in the Mojave National Preserve. Because the memorial consists of a simple white cross, Frank Buono, a former parks service employee who is also a practicing Roman Catholic, objected to what he saw as the mingling of the state with the promotion of a particular religion, an act that would be clearly in violation of the Establishment clause of the First Amendment.

But does a cross in a public place always connote a religious mingling? In one heated exchange between Justice Antonin Scalia and the attorney for Buono, Peter J. Eliasberg, the question was raised: does a cross inevitably symbolize Christianity or can it be seen as a symbol of death or mourning or perhaps even something else? Is it "our" way -- the viewer's way -- of seeing it that is determinative or is it the way in which those who erected it see it? If the cross symbolizes Christianity and nothing else should we reconsider all uses of it in public life, (because there are many)?

Here is the Supreme Court exchange:
Justice Antonin Scalia: "The cross doesn't honor non-Christians who fought in the war?"

Peter J. Eliasberg: "I believe that is actually correct"

Scalia: "Where does it say that?"

Eliasberg: "It doesn't say that but the cross is a predominant symbol of Christianity..."

Scalia: "It's erected as a war memorial. I assume it is erected in honor of all the war dead. The cross is the most common symbol of the resting place of the dead...What would you have them erect? Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Eliasberg: "...the cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on the tombstone of a Jew."

Scalia: “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead...I think that’s an outrageous conclusion.”

So, let's examine this idea in more detail

1. Can a cross be a secular symbol?

We are all familiar with the tiny white crosses that appear at the site of a roadside fatal accident. Should we conclude that a Christian died there? Or, perhaps more specifically, that this is a Christian blessing on the memory of those that died there? I have neither reaction. To me, it is both a memorial and a warning -- someone died here, therefore this is a sacred place; and someone died here so watch how you drive. But not everyone would agree with me and well, even I don't always agree with myself on this point. In a separate case heard in a district court in Utah in 2007, Judge David Sam concluded that such crosses are secular. That made sense to me until I saw the cross at issue. It is a 12-foot-high (see picture below) totem engraved with the name of the dead trooper. In other words, it looks more like a gravestone than a marker. The intention of the symbol may have been non-religious -- erected by the state of Utah it was meant to draw attention to the loss of life of those who make a particular sacrifice on our roadways -- and I seriously doubt that even the troopers' families see this symbol as evoking some Christian message or as a statement of their dead loved ones' faith. Still when I look at it, I don't see this one, at least, as secular at all. What do you think?

Last March, the Tenth Circuit heard an appeal of American Atheists v. Davenport, the case I cite above. No ruling has yet been issued.

Utah roadside cross

2. What about the Red Cross? What is the meaning of the cross in that context?

When established as an aid organization in the mid 19th century, the International Committee of the Red Cross claimed no affiliation with the Church or its symbolism. In fact the red cross logo is a reverse of the Swiss national flag -- the flag is a white cross on a red background while the Red Cross emblem is a red cross on a white background. That is purposeful -- the organization was begun by a Swiss national and the Swiss tradition of neutrality is important when providing aid in war-torn areas. Indeed, one can certainly make the case that the cross is ubiquitously secular when attached to the act of medical assistance (if you don't agree, then open your glove compartment, pull out your first-aid kid and tell me if you feel religiously moved or offended).
Nonetheless, bowing to concern for religious sensibilities around the world, the ICRC recently announced that it will change its rules to allow any of three symbols to denote its activities, the red cross, the red crescent (which it adopted at the time of World War I to gain acceptance in Muslim countries) ) and a new red crystal. Ironically, this is a case where concern over religious sensitivities has actually turned a secular symbol into a religious symbol. Indeed, confusion abounds. Recently, the FOX News host Bill O'Reilly falsely claimed that the Red Cross "historically ... adopted" its emblem "because of the Christian philosophy of giving alms and giving assistance to people in need."

3. Doesn't the American army provide a Distinguished Service Cross? Isn't that a religious symbol?

Adopted at the time of World War I, the DSC and equivalent Navy Cross are indeed in the form of a cross. The honor, which the commanding general of American forces GEN John J Pershing encouraged President Woodrow Wilson to adopt as a way of honoring service in much the same manner as European armies did, is in the long tradition of cross-shaped military honors denoting courage. However, these crosses commonly include other decorative elements that distinguish them from the Christian cross. The DSC, for instance, includes an eagle, a scroll, a wreath and an inscription that reads "For Valor."


4. What about national cemeteries like Arlington? Aren't there crosses there?

The Veterans of Foreign Wars and other veterans groups contend that if the Supreme Court rules against the cross, all war memorials with similar emblems will have to be moved or destroyed. They cite the Arlington National Cemetery's Argonne Cross Memorial and Canadian Cross of Sacrifice, as well as crosses on headstones elsewhere. Must these all be torn down as well? Peter Eliasberg, the ACLU attorney arguing this case for Buono, says no, referencing the context in which any memorial appears as significant to its message. There are plenty of competing religious symbols at Arlington, he says, such that one would not conclude that the government is in favor of Christianity.

5. What matters on this? The intentions of those who 75 years ago erected the Mojave cross or the reactions that it produces today?

In a recent exchange in the Los Angeles Times, University of California at Irvine Law School Dean (and PJP participant) Erwin Chemerinsky and Joseph Infranco, an attorney with the Alliance Defense Fund, discussed that matter as follows:

Erwin Chemerinsky: The Supreme Court has said that whether there is a symbolic endorsement of religion is determined from the perspective of the "reasonable observer."

A cross is a quintessential Christian symbol. It is a reminder of the death of Jesus Christ. Some Christians wear a cross around their necks, make a sign of the cross or hang crosses in their homes. None of these uses of the cross has anything to do with remembering the war dead. All are powerful evidence of the cross as a religious symbol.

Cross boarded up

A cross, of course, can be used for other purposes. The Ku Klux Klan uses it to communicate its message of bigotry. As you say, in some contexts it is used to identify those who died during war...

The cross at issue is bolted to a rock outcropping rising 15 to 20 feet above grade and is visible to vehicles on the adjacent road from 100 yards away. It is on federal land. A "reasonable observer" who sees such a cross is likely to think of Christianity, not about the war dead. In fact, every court to consider this display found it to be unconstitutional as an impermissible endorsement of religion; my hope is that the Supreme Court will do the same.

Joseph Infranco: "...your argument fails [in] your appeal to the "reasonable observer." The Supreme Court has consistently applied this standard to an observer who is fully informed on the background and history of a display, or else we judge by the least informed individual -- what the court has called a "heckler's veto." In this context, a reasonably informed observer familiar with the history would know that the Mojave Preserve cross has been a veterans' memorial since 1934. The standard you would like to apply is not that of a "reasonable" and informed man but rather an extraordinarily unreasonable individual with the thinnest of skins.

TB