As I mentioned in the post below, one of the cases the Supreme Court will hear in the next term involves a large memorial cross on the Mojave National Preserve. In Salazar v. Buono, the plaintiff, a Roman Catholic former employee at the Preserve, objects to the exclusive display of the Latin cross on government property. This has been one of those classic government display Establishment Clause cases, which is to say it has followed a long, tortured, and overly politicized path. Its resolution really should be about the legality of this long-standing cross on public land, and whether Congress can sidestep court rulings that the display is unconstitutional by transfering the land at the last moment to a private entity.
Nonetheless, one of the government's chief arguments is about something else entirely: that the plaintiff did not have standing to bring the challenge in the first place, because he's only concerned, they say, about the harm caused to others unable to erect their own monuments.
[C]ourts commonly deny standing to plaintiffs who object to governmental action that has not directly affected them, but that has purportedly denied someone else a right secured by the Constitution. Respondent is in no different situation.
In the context of this case, and Establishment Clause cases generally, this is a troubling argument, implying a view of church-state separation that ignores a key religious perspective. Referring to the plaintiff as a "third party", the government's position seems to say that when the state promotes religion, harm is done only to the excluded, only to those who wish to add a monument to their own faith but may not. In fact, the state's misuse of religion is as much an affront to the faith being co-opted as it is to the faiths being marginalized. Frank Buono's Catholicism doesn't preclude his injury by the government's improper display of a Latin cross; it explains it.
In an amicus brief filed with the Supreme Court Monday, the Baptist Joint Committee took on this area of the government's argument.
Mr. Buono no longer enjoys the government property because he sees the government's display of a Christian symbol in a way that misappropriates it and has the primary effect of advancing religion. That is a personal, direct injury, different perhaps from the injury to someone of another faith who feels like an outsider, but injurious nonetheless. Seeing one's faith receive preferential governmental treatment, while aware that no minority faith would receive that treatment, demonstrates the government's perversion of religion for its own ends. The government is taking something that should be a symbol of voluntary religious belief and practice and using it in a way (i.e., maintaining it on government property) that alters its apparent symbolism by making it look like an "official" faith. It is not surprising that devout, voluntary adherents of a religion would not want to send the signal to those who do not share in the religion of the majority that they are political outsiders. Where the government endorses one religion over all others, it weakens the sanctity of that religion and its beliefs.
