Posted by Jack @ 9:10 pm on July 24th 2009

The ACLU and the Mojave Desert Cross case.

Apparently, since I recently came out to my friends as a “card carrying” ACLU member, I am the defacto designated defender for them in controversial cases. Take today, when one a close friend since the Academy emailed me with a sort of tongue-in-cheek “oh yeah, well let’s see you defend this” challenge, in which he forwarded a histrionic email containing a youtube video discussing the terrible legal tragedy playing out in our court sytem surrounding the Mojave Desert Cross:

Now, my friend was pretty skeptical about the video, recognizing the one-sideded and emotion-based appeal, but the challenge, at least half serious, stood. My response, mildly cleaned up, which also references the incomprehensible email diatribe that prefaced the youtube link:

Sure, I’ll take this one on. Mojave Desert Cross case. So:

A really large Christian symbol is erected on federal land without permission. That’s pretty much the first and most important fact. Yeah, its been there, in one form or another (torn down, rebuilt, changed, etc) a long while, yeah it supposedly exists in honor of WWI vets who sought healing in the desert or something. But really: is that monument a statue of a doughboy, or is it freaking Christian cross? Cause from my angle, its a cross. Maybe WWI vets were extremely skinny albinos with pipe-like arms, but I’m going with “What is a Cross, Alex”. Which means we can pretend it is there to honor WWI vets, but in reality it is to honor a particular religious sect’s messiah figure, and whatever secondary honor it grants to vets, we don’t mean the Joo vets, the Mussulman vets, and definetaly not the godless vets. Yeah, I admit it, that last line is a bit over the top, and I’m sure the Christian cross erectors would say that they meant for the cross to represent ALL our vets, but it is still a cross, and I’m not sure how pleased I would be if I were a non-Christain vet being told that this Cross is for me. Oh wait, I am a non Christian vet, and I don’t think that cross is for me.

At heart, this case is pure constitutional law on a well travelled issue: The Establishment Clause of the First Ammendment. You can distract with emotional appeals about our fallen soldiers and tearful soliloquies to the brave vets who gave their all, and even state profoundly ludicrous lines such as that taking down this monument would be like spitting in the eye of all current service members, but that has almost nothing to do with the legal issue involved. It is pure constitional law, revolving around the not at all clear line as to what constitutes government establishment or endorsement of religion.

In this case, we have an explicitly Christian symbol on public, i.e., federal government land. Now, it is quite possible, that under existing legal precedent, specifically the “Lemon Test”, that the 9th circuit will get overturned on grounds that this Christian cross has a legitimate secular purpose (i.e., honoring war dead). And should SCOTUS overturn this case, despite my atheism and support for the ACLU, I am completely OK with it, because I recognize that reasonable people can disagree as to the proper interpretation of the clause in question. And this reasonable disagreement over complex constitutional issues exists across a wide section of generally mainstream legal groups. These groups are at odds as to how “hard core” we should interpret the clause, about how high the wall of seperation between Church and State should be. The ACLU falls squarely within this mainstream legal community, while those that espouse there is no constitutional basis for seperation of Church and State are outside of it. The ACLU has a harder, or stricter interpretation of the Church – State line than most folks: freely admitted. But it is wrong and foolish to demonize the ACLU for taking a legal position on the EC, and backing it up via court cases. It is also wrong and distortive to characterize the ACLU as seeking to destroy all expressions of religion: They also have a long history of defending religious speech in unpopular circumstances, whether it be street preachers or the rights of public school students to have religious sayings on their t-shirts. They are frequently involved in defending religious, and especially Christians’, rights.

Apart from the video, I would like to say a few things about the email itself:


Oh dear me the evil ACLU is trying to destroy our country, and isn’t it terrible how “one individual, just one” can take a case to the Supreme court? No, its not terrible, its feaking wonderful. It is absolutely fantastic that a private citizen, supported by a non-government agency, can turn to the Constitution, note the First Ammendment Establishment Clause, and seek recourse from the law, even for an unpopular cause. Thank whatever Gods you worship for this. I recognize the email is polemic, but seriously, due process anyone? Recourse to the Law? Right to petition the government for a redress of grievences? Anyone? Bueller?


This is just incomprehensible. We are talking about a court challenge surrounding the Mojave Desert Cross here, right? What in hell is all this talk about “these so-called congressman”? And why are they “so-called”? Is the author alleging some sort of grand conspiracy in which all these fake congressman have some sort of birth certificate-citizenship problem? And what the hell is this about a different flag flying out our window? I thought we were talking about a cross. Or does this person see the cross as the real American flag? When did we become a theocracy? See, I can play ridiculous argument too! But lets take the argument, such as it is, at face value, and play a little thought game. The writer and his/her supporting readers: they point to this case with fear and anger in their hearts, and they buy into the above statements about losing our country a little at a time due to the ongoing encroachement of the guvmint and “so called Congressman”: What percentage of them, do ya think, got themselves worked up over the MUCH more extensive, already enacted, and still present government expansion of power during the post 9-11 era? How many of them view the extraordinary overreach of our government in our drug war, using the commerce clause and other dubious justification for an enormous number of civil liberties (i.e., “our rights”) violations? Which of them questions the extraordinary powers granted law enforcement to ignore your Fourth Amendment rights against unwarranted search under various anti-drug, anti-immigration, and anti-terrorism laws? I’m guessing not a lot of them get too excited about any of those issues. So what this really seems to come down to is wanting religion in general, and Christianity in particular, to have special priveleges and immunities under the law.


Like what? Send distorted histrionic emails? Here’s a thought: read the Constitution and some at least semi-neutral interpretations of the 1st Amendment Establishment Clause, and by neutral, there are a whole lot or organizations out there that take as an a priori assumption the idea that this country must be ruled by Christian morality and laws: such theocrats do not really count as neutral.

The ACLU needs to go!!!!!! …… And take ACORN with them!!!

Right, ’cause if you are gonna ignore the Establishment Clause of the First Ammendment, we should probably get rid of those pesky Free Speech, Assembly, and Petition of Government clauses as well.

Look, I’m one of those evil people who see prayer to invisible sky faeries as irrational behavior. So perhaps that makes my opinion obviously skewed, and thus suitably ignored by Right-thinking God-worshippers. But you still have a Constitutional issue here, and I wonder how the supporters of this email would feel if I wandered out to some prominant national park and erected a big crescent with Allah Akbar in big letters on it? How about the Atheist “A” symbol?

You down with that? Maybe I can put my Atheist A statue at the entrance to your courthouse, or on the county park that overlooks your house? Good to go? OK, so you are open minded and can deal, but it turns out that the Scientolgists, and the Bahiasts, and FLDS, and an endless line of others, both monotheistic sects and pagan groups, also want their symbols on display, on government land, and protected by the State. Or we can draw a clear and fair line, consistent with Constitutional principles, and not do any of that.

Finally, some irony: Liberty Legal Institute, unlike some of the religiously oriented right wing legal groups, has legitimate Free Speech bonafides, and I can respect them for it. LLI and the ACLU both filed amicus briefs in the “Bong Hits 4 Jesus” SCOTUS case. Both briefs were in favor of the student. Pretty cool.

FOLLOW UP: My friend questioned where it all ends, this removal of government religious endorsement symbology, with the following:

So if the statue were actually of a doughboy then it would be secular, correct? But what if the doughboy, being properly in uniform, was wearing dog tags? What if the dog tags said “Presbyterian”? Is it now a religious statement? At what point is any religious reference more a reflection of the American culture than a statement of religion?

A fair question. My response, again mildly cleaned up:

Indeed, the appropriate display of religious symbology on government property could devolve into angels-on-the-head-of-a-pin pedantry. I would not support, nor do I suspect that the ACLU would support, the tearing down of a statue of a doughboy with dog tags that had “Presbyterian” engraved on them. I can see the ACLU weighing in during the construction of said statue as to the need to have the religious identification of the soldier specifically on display. And I can see all sorts of Christian religious groups expressing shock, shock! that anyone would object to their specific religion receiving special prominence on State grounds. But…a reasonable retort to this rhetoric might be: I wonder how close this hypothetical dog tag engraving is, in terms of religous display, to the actual Big Honking White Cross at issue in this case?

Perhaps of greater relevence, and likely to see further legal challenges, would be a discussion of the appropriateness of insisting that all school children have to swear that their country is protected by a God (The Pledge, at least since 1954) or that every time I handle any piece of Federal currency, I am to be reminded that the Fed specifically endorses an Abrahamic religious identity. Or if when I go to certain courts, I am greeted by an ediface with terrifying implications; that this particular court district subscribes to a legal theory citing as a matter of Higher Law that I have to Honor a God, a specific God, including setting aside a special day just for Him. I wonder, exactly which version of the three major Decalogues will be engraved on said courthouse monument? I’m guessing it won’t be the Jewish one. (And I’m hardly the first to question what sort of ignorant legal theorist thinks that our Constitution is based on such nonsense, anyway? Half of the Commandments are blatently unconstituional, and one of them, if obeyed, would destroy the entire basis for a capitalist economy.)

As to the ACLU: Yes their very actions produce backlash. The ACLU historically takes cases that are unpopular, sometimes radically so. And I have been disappointed with a vague trend in case selection which emphasises too much the Establishment Clause, at the expense of other case options associated with free Speech, particularly when free speech is from the Right. And of course, the ACLU has no record at all on gun rights, as the old joke goes: “How does the ACLU count? 1 3 4 5 6 7 8 9 10.” But all in all, I think the ACLU does a bang up job, and are far more “in the right” than the religious right, what with the latter’s Christian Nation revisionism and expectation that they should be able to define morality for all of us based upon a Very Old Book.

And you are right, of course, as to the Mojave desert significance: it is much more about precedent.


  1. Like the currency motto, “under God” in the Pledge, and Ten Commandments displays in official settings, this seems to be a fairly blatant case of insisting that the state give, or at least acquiesce in, special recognition of one specific religion or deity — the exact thing that the First Amendment prohibits.

    It’s true that these are symbolic issues, but symbols can carry great weight (otherwise the religious wouldn’t be fighting back so hard against the ACLU and secularists’s efforts to remove them). And, as you say, they can set dangerous precedents.

    Is the Constitution only to be enforced when doing so is supported by the majority and/or doesn’t upset anybody? If that’s the case, then we need no Constitution. In fact, if that’s the case, arguably we have no Constitution.

    (Thanks for the blogroll link, by the way.)

    Comment by Infidel753 — 7/25/2009 @ 6:50 am

  2. Aside from the religious issue, there’s the problem of random people building stuff on public land. If this is allowed to stand there would be little stopping crazies from going to some remote corner of BLM or Forest Service land and building a monument or shrine to the cause of their choice. It seems like prohibitions against private construction on public lands would the be issue here more than religious expression. What sort of authority does the BLM lack? Couldn’t they just tear it down because it was built on BLM land?

    It’s nice to see you here Infidel. I’ve become a fan since Brad’s blogroll post.

    Comment by Cameron — 7/25/2009 @ 7:19 am

  3. Interesting point. If a group of Satanists were to build a giant inverse pentagram on public land and declare it a momument to the victims of the medieval witch-burnings, would the same people who defend this also defend that? It seems that the relevant issues would be identical.

    Comment by Infidel753 — 7/25/2009 @ 11:33 am

  4. “Iím one of those evil people who see prayer to invisible sky faeries as irrational behavior”


    Carry on.

    Comment by Mike — 7/25/2009 @ 12:26 pm

  5. @Infidel – Exactly. But not quite. Apparently there’s more to this story which kind of takes the air out of my original complaint. This monument was not built on federal land. It was originally built on 5 acres of land the local VFW owned. For some reason the VFW donated this land to the federal government in 1934. Once the ACLU sued the government for the removal of the cross, the VFW offered to trade 5 acres of land for the monument land. The 9th Circuit Court ruled that exchange unconstitutional.

    This is actually more interesting now. The original suit by the ACLU is defensible due to the cross being on public lands. The subsequent refusal to trade the land back to the VFW is a bit less so. I can’t fathom a good faith trade of land, one of which contains a moderately religious war memorial, to be against the establishment clause. I’m curious about the circumstances of the original trade. The fact that the monument was originally constructed on VFW and not federal land makes this peculiar.

    An LLI pdf press release and amici brief fill in some details of the case.

    @Jack – Are you secretly British?

    Comment by Cameron — 7/25/2009 @ 1:09 pm

  6. @ Cameron:
    re secretly British: er, no. What did I do or say that suggested that?

    I am highly skeptical of the LLI’s one sentence toss off statement that the VFW owned teh land until 1934 before donating it to the Fed,, but open to pursuasion. I could not find that info anywhere else, but I admit it was but a cursory search. I would have thought sucj a fundamental fact would have been included somewhere in the amicus brief, if it could be backed up. I suspect that the “VFW owned the land untilo 1934” might really mean “people associated with the VFW squated on the land until 1934.” But convince me otherwise.

    As to the land exchange: I am also quite curiou about this. I had originally planned to address it in the post, but did not at the time have enough information to discuss it intelligently. My understanding was that a California conressman had proposed a bill to the effect that the VFW would buy or exchange the land in question. I would really like to know the details of that part of the case.

    Comment by Jack — 7/25/2009 @ 4:36 pm

  7. The amicus brief is pretty pathetic. It’s filled with defenses of religious connections in other war monuments. They seem to be fighting the case based upon religious tenets and the fear that countless war memorials will vanish if this one is torn down.

    Your spelling of fairies as faeries has blown your cover as an American. Your countrymen do the same weird addition of vowel thing with manoeuvre and foetus.

    Comment by Cameron — 7/25/2009 @ 5:24 pm

  8. The park was Free Range land before it was handed over to the park service. The VFW owns land within the park edge and they offered to exchange 5 acres for the one where the cross sits. But the cross is almost smack in the middle of the park. If you look up the history of the park I think it says it became park land in 1994.

    Comment by katmando — 7/26/2009 @ 11:00 pm

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