“When is a cross a cross?” was the heading of a post by Stanley Fish earlier this month in the NY Times Opinionator Blog. The entry referred to US Supreme Court’s recent ruling in Salazar v. Buono concerning a solitary Latin cross standing in the Californian desert as a memorial for those who fought in World War I. Alluding to the Establishment Clause jurisprudence, Fish notes that this case is the “latest chapter” of an “odd project of saving religion by emptying it of its content.” He argues that “[i]t has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them.”
The Latin cross at issue was placed by private citizens in a federally-owned remote part of the Mojave Desert back in 1934 to honor American soldiers who fell in the war. Frank Buono, a retired Park Service employee and frequent visitor of the Preserve, claimed to be offended by a religious symbol’s presence on federal land and alleged a violation of First Amendment’s Establishment Clause. The cross, Justice Kennedy, writing for a plurality, acknowledges, “has been a gathering place for Easter services since it was first put in place.” The US Supreme Court was asked to consider, not the first placement of the cross, but a statute transferring the land on which the cross stands to a private party in an attempt to “cure” the initial Establishment Clause violation. The land-transfer statute provided that the property would revert to the Government if not kept “as a memorial commemorating United States participation in World War I and honoring the American veterans of that war.”
Although decided against completely different backdrops, I find some striking similarities between the rationale underlying the meaning of the cross put forward by the plurality in Buono and the one advanced by the Italian Government in Lautsi. In Lautsi v. Italy, the European Court of Human Rights ruled against the display of crucifixes in Italian state school classrooms. Like the plurality in Buono, the Italian Government in Lautsi attempted to deprive the crucifix of its religious meaning. In Buono, the plurality characterized the cross as “a symbol [with a] complex meaning beyond the expression of religious views” and added: “a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts […] help secure an honored place in history for this Nation and this people.” In Lautsi, the Italian Government for its part stated that the crucifix “could be perceived as devoid of religious significance” adding that it was not a “sign of preference for one religion [but] a reminder of a cultural tradition and humanist values shared by persons other than Christians.”
Unlike the US Supreme Court, the Strasbourg Court, while acknowledging the multiple meanings of the cross, rightly understood the religious one was predominant. “The presence of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion.” Lautsi has now been referred to the Grand Chamber and is scheduled to be publicly heard next June 30. I am wondering whether the Grand Chamber will be asked to revisit the Italian Government’s arguments on the meaning of the crucifix. If it is, I just hope the Court does not depart from the Chamber’s reasoning in this regard. Be it the desert or the public school, the religious character of such symbol cannot be easily called into question.