The Charlotte News

Friday, October 9, 1942

FOUR EDITORIALS

Site Ed. Note: We first note something of contemporary significance, albeit not directly related to anything on the pages of this date--even if in another, more general sense, completely related. We mean the currently pending case before the Supreme Court in Salazar v. Buono, just orally argued day before yesterday, contesting whether the Veterans of Foreign Wars may, under the First Amendment's Establishment Clause barring Congress from passing any law establishing a religion, place on Federal land in the Mojave Desert national preserve a cross in remembrance of soldiers who died in war. The cross was erected in 1934.

The case, incidentally, is before the Court on somewhat narrower grounds than an Establishment Clause violation by which it has been promoted in many quarters: first, whether the Park Service ranger who brought the case has standing to object to the cross's presence; and, second, whether the transfer of the cross's situate land to the V.F.W. by the Federal government under an act of Congress removes the Federal establishment motive, (or, as Justice Breyer inquired during oral argument, whether the same goal could be effected, assuming arguendo that transfer of the land with the cross still extant represents an establishment, by simply removing the cross, then re-transferring the land, after which the V.F.W. could re-erect it, all without thereby transgressing the First Amendment).

A threshold question, however, underlying the second issue, is whether the presence of the cross on Federal land, or at least surrounded by Federal land after the transfer, is an establishment of religion in violation of the First Amendment, such that transfer of the land with the establishment in place promotes a particular religion.

We suggest, in this instance, that the matter is more than a bit of a tempest in a teapot, stirred deliberately to the extreme limits, both geographically and symbolically, apparently so that someone, namely rightwing jabberwockies on talk radio along with their jabberwackying listeners, might become exercised about something they attribute to "lib'ralism" victimizing their rights and thus say, "See?"--that is, should the Ninth Circuit decision be affirmed in its holding that the cross is a religious symbol, thus connoting an establishment in violation of the First Amendment.

Those who cherish freedom of religion ought view this case as a victory when, in all probability, the Supreme Court reverses. For it is simply not reasonable to suggest that a simple cross, without religious words attached to it, without any proximity to a church, erected to commemorate the war dead of all religious creeds, stands perforce as a religious symbol such that an establishment has occurred.

That is so notwithstanding the fact that some groups celebrate Easter regularly at the cross, for that fact does not change the symbolic connotation unless, in some way, the cross is actively promoted as a religious symbol, either at the site or by the group erecting and maintaining it, neither of which is suggested by the record of the case. If, for instance, a particular religious sect began camping out regularly at the memorial and holding religious services there every Sunday, then perhaps, by adoption, a new connotation would be added to the symbol. But then, even so, arises the question as to whether the symbol itself inherently would be drawing to it such attribution of religious meaning or whether the people so demonstrating would be merely lending their own subjective understanding to an otherwise neutrally intended symbol.

Did John Lennon, when he said in 1966 that the Beatles were more popular than Jesus, intend to suggest that they were better than Jesus, or was he merely making a neutral statement devoid of religious meaning, such that "Beatles" was interchangeable with "television" or "plastic" or what have you, a critical statement on modern culture?--just as he subsequently clarified it to be.

Similarly, is the cross perforce taken as a religious symbol in its contextual placement in the desert or is it a religion-neutral statement of memorial for the war dead, or, if bereft of its original wooden plaque so indicating, is it then too indefinite in meaning to be regarded otherwise than as a religious symbol, even if obviously intended to commemorate someone who died? Isn't the presence in the desert of a cross suggestive of the same areligious idea of memorial which comes immediately to mind when one sees a cross on the side of the highway?

One could erect a blank black marble wall in the desert, calling it a war memorial, and inevitably some religious cult might begin worshipping there periodically, finding its monolith representational of the great void beyond life, and thus a methaphor for either heaven or its indefinitely defined antithesis, hell, and so symbolic of all creation at once. Does that then make it, by someone else's subjective perception of its significance, a religious symbol?

The cross is obviously a universal symbol in Western culture for commemorating the dead. One will find it, either standing alone, or as part of a tombstone, in probably every public, non-sectarian cemetery in the United States, Canada, Mexico, South America, and throughout Europe. Based on the tradition thus established in Western culture for commemorating the dead, the cross is not necessarily a religious symbol connoting the Christian religion.

We live in Western culture; that is reality. We may, if we like, move to other cultures with different customs and traditions, with different symbols used more typically to memorialize the dead.

The essence of an initial determination of the limits or permissibility of free speech always rests in the connotations of the speech, its symbolic content, its speaker's own expressed qualifications of it, and whether that content is susceptible of more than one likely connotation when heard reasonably in context. To say, "I am going to shoot you if you take down that cross," uttered in certain contexts, armed to the teeth, for instance, is indubitably a threat; to say it in another context, calmly and without apparent means or intent to have the words taken literally, is not.

The same is true of establishment issues. The cross must be viewed in its present context, in the desert, apart from the general society, apart from a church, apart from any established religious connotation. It is a simple, if not very attractive or elegant, war memorial and was so expressly established in 1934. (We make the aesthetic judgment on the basis of its being formed of welded pipe, not because it is a cross, per se. So, sit down, Christian rightist--and, for once, shut your obnoxiously loud mouth. We're on your side, this time. At least, we assume that to be the case, logically--though we could be wrong, if our initial assumption is correct that this whole simmering tempest in a teapot dome has as its festering motive the purpose of enabling a sense of victimization on the part of the average Christian rightist so that he or she may say, with some probity, of the lib'ral establishment, "See?")

As the veterans' organizations make the valid point, affirming the lower court decision to have the cross removed as a prohibited establishment of religion would mean likewise, for consistency, that crosses in Arlington National Cemetery ought be removed--including ones placed by families to commemorate their dead.

Should the cross on the marker at the grave of President Kennedy be covered or removed because it establishes a religion by virtue of its being on Federal ground?

The notion devolves to an obvious and absolute, unequivocal absurdity, and there is no establishment simply because a traditional Western symbol to commemorate the dead exists on Federal land, as long as the symbol is offered for that sole symbolic purpose, not to establish a locale where people might congregate in the Mojave Desert to celebrate their religion. After all, those same people could go to a cross-shaped cactus in the desert and celebrate Easter. Should the cactus then be removed as establishing a religion?

If a group sought to erect a small church nearby, that would be a different matter. The question whether the Park Service violated the religious freedom of a group which wanted to place nearby a Buddhist symbol is not squarely before the Court. The request was denied by the Park Service. Should the Supreme Court reverse the Ninth Circuit, does that differential treatment pose an equal protection argument on the basis of discriminating against one religious belief in favor of another?

It should not be so, for to avoid the establishment issue, the symbol in question must have reasonably well understood secular significance, not inextricably bound up with religious connotation. Thus, discriminating between a symbol neutral of definite religious connotation, or one which has come to be so regarded commonly in the culture, and a symbol which is without question inextricably bound up with a religion, does not deny equal protection when at issue regarding the placement of the second symbol is the very notion of whether, because of its inherent religious connotation, it establishes a religion, while the first is offered to commemorate the war dead and has implicit within it a reasonably well-recognized secular, areligious meaning, memorializing the dead.

The question of the religious significance of this cross in the desert, deliberately placed there for the expressed purpose only of commemorating the war dead, is a far cry from the question of religious connotations of, say, a nativity scene on municipal property at Christmas. There is plainly in that latter context religious significance to the display, not only not apart from, but inextricably tied into, the Western cultural perception of the significance of the birth of Christ to the Christian religion.

But, an empty manger without an infant, or representations of wise men, Joseph or Mary or angels, surrounding it, carries the same level of significance as would a barren cross apart from a church. Neither has necessarily religious connotation or immediately draws to the mind the idea of the Christian religion. A manger, after all, is no more than a feeding trough for cattle. A cross is no more than a representation of a crucifixion device used during the days of the Roman Empire. Its significance without the representation of Christ is no more religious necessarily than a Caesarian crown, both, however, emblematic of secular notions--the first arguably pro-fascist, pro-empirical, while the second, anti-fascist, anti-imperialist, perhaps also suggestive of martyrdom, but not necessarily religious martyrdom.

Moreover, if this cross violates the Establishment Clause, would not the Star of David in or on the grounds of the Federally-established Holocaust Museum in Washington not then violate the Establishment Clause? Yet to remove the Star of David from the Holocaust Museum would be to deny the very reason for the Holocaust in the first instance, religious and ethnic bigotry. It would be to secularize something which was founded on religious bias. It would contradict history. Is the Star of David in this context thus distinguishable from this cross in the desert, as an historical symbol inextricably tied to the historical facts of the Holocaust, not intrinsically therefore religious or promoting of a religion in its connotations?

The Hall of Remembrance at the Museum is designed in the form of a six-pointed Star of David--and rightly so.

Yet, in the strictest sense, is that design not susceptible of the very same argument applied to the cross in the desert? even if the motivations for America's participation in the various wars which the cross in this instance memorializes have never been associated with any form of religious persecution of Christians.

If the Buono decision is affirmed, will not some extremist group contend, and with some degree of probity, that the Holocaust Museum itself violates the Establishment Clause?

Should the analysis logically differ one whit were it the case that at Rosh Hashanah or Passover, a Jewish group annually gathers and prays at the museum?

The Ninth Circuit, whose decisions we ordinarily admire, founded its holding on Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 496 (7th Cir. 2000), a case which held that a lighted statue of Jesus in a municipal public park remained an establishment of religion despite the land on which the statue stood, the statue, and the responsibility for its maintenance all having been granted to a private orgainization. The Seventh Circuit case had held that, while transfer of the land created a presumption of the end of government endorsement of the religion of which the religious symbol was connotative, the presumption was rebutted in that case by the fact that the reasonable observer of the statue would still consider it an endorsement of religion for its being situated within a public park, otherwise maintained by the City of Marshfield.

The Ninth Circuit declined to adopt the presumption, but adopted the remainder of the Marshfield reasoning in the Buono case to hold that the ordinarily knowledgeable observer would understand the cross as a religious symbol and believe that, since it rested on a government preserve, ninety percent of which was Federally owned and maintained, the government was endorsing the religion for which the symbol stands.

The Seventh Circuit reasoning with respect to a statue of Jesus is, we believe, unassailable. A statue of Jesus has symbolically one and only one reasonable connotation, that as a symbol of the Christian religion.

A cross, however, does not carry the same inseparable representational quality in the mind of the average observer raised in Western culture, accustomed to cemeteries and roadside accident memorials dotting the landscape with crosses. The cases, we suggest, are therefore quite different for the symbols being completely different in their reasonably perceived connotations.

The Court in two cases decided the same day in 2005, Van Orden v. Perry, ___ U.S. ___, No. 03-1500, and McCreary County, Kentucky, et al. v. ACLU, ___ U.S. ___, No. 03-1693, came to opposite conclusions in splintered pluralities on whether displays in each case of the Ten Commandments on government grounds violated the Establishment Clause. Van Orden held 5 to 4 that the display on the State Capitol's grounds in Austin, Texas was so historically identified with a primary secular purpose that the reasonable person would not perceive the display as having a primarily religious connotation. McCreary County, decided also 5 to 4, the swing vote being that of Justice Breyer, held that displays of the Decalog on two Kentucky counties' courthouse grounds had a primary religious purpose by the facts surrounding their methods of promotion and display.

Each case, in short, turns on its particular factual context, the stated primary purpose of a particular display, and whether that expressed purpose is consistent with the display itself as presented and promoted, and whether, in the abstract, reasonable perceptions of it would therefore be consistent with the stated primary purpose.

For instance, if in this case, the present owner of the land on which the cross rests, the V.F.W., were to distribute literature in advance of Easter promoting a memorial service, call it a Sunrise service, at the site of the cross, then, plainly, the "war memorial" has taken on a cloak of religious significance and ceremony, tied into a religious observance.

If, on the other hand, the V.F.W. announces a memorial service at the cross on Memorial Day or Veterans' Day, and conducts in the process a simple prayer service for the dead of America's wars, then still is maintained the primary objective of the cross as a war memorial, not a religious symbol at which persons are invited to congregate for the purpose of religious observance.

Yet, nothing may bar a group on its own from going to the cross and praying, chanting, dancing, singing Halleleujah, or whatever other free expression of religious observance they might wish to make in their private behavior under the First Amendment, provided that such behavior does not then interfere with the normal secular activities of the surrounding national preserve and its visitors. The remoteness of the preserve and the cross obviously contribute to this context as well.

But, establishing a Christian summer camp at the site with daily reading from the Bible at the cross, praying for rain, for instance, would probably subject the participants therein to curtailment both by the Park Service on the surrounding land, for violation of use and camping restrictions by regulatory license, and by the V.F.W. who owns the memorial, on the basis of trespassory invasion of the intended purpose of the memorial, quiet, unobtrusive remembrance of the war dead. For, if the V.F.W. were permissively to allow such ongoing religious activity of the Christian summer camp, the tendency of the reasonably knowledgeable observer would be to assume that the purpose of the memorial was not as promoted by the Congress in its transfer of the land and memorial to the V.F.W. and as originally stated by the V.F.W. in establishing the memorial in 1934 and, decades later, obtaining the transfer, but rather for the primary purpose of the establishment of a church in the desert, in the secondary guise as a war memorial.

As to whether the cross at issue in Buono ought be banned on simple aesthetic regulatory grounds for want of proper permit from the Park Service, the original ground for seeking its eviction, is another issue. The government could ban the cross without interfering with anyone's religious belief, for, as indicated above, the matter then cuts the other way: that is, if it doesn't constitute an establishment of religion, it isn't an interference with religious belief to ban it, and vice versa. But the Congress has spoken on that issue by the transfer of the land to the V.F.W. and so that part is resolved.

If it survives scrutiny, somebody ought, we think, nevertheless erect a better looking monument befitting a national park and the war dead the memorial commemorates. The present one looks, candidly, like something thrown together which one might see outside an automobile junkyard. The only thing missing is an old three-legged dog tied to it howling hopelessly in the sunset.

We note that the training of the 2nd Armored Division in preparation for Operation Torch, the invasion of North Africa, took place in the nearby and contiguous Imperial Valley of California, just below the Mojave Desert, areas geologically indistinguishable by the naked eye. Thus, the memorial, while predating this training by eight years, had attached to it subsequently added significance. It was Operation Torch which, with Bernard Montgomery's British Eighth Army moving relentlessly from the east, in late 1942 and early 1943, put an end to Rommel's North Africa campaign and began thereby the slow process of erosion of the Nazi ground gains which had reigned apparently insuperable and resistless during the previous three long years.

All religions, therefore, which are not fascist in their philosophical assumptions, and all who value freedom, regardless of religion or not, ought take solace in this memorial, located far from the madding crowd, somewhere in the Mojave Desert--whether a cross constructed of rusting pipe or otherwise.

Moreover, if you have ever been to the Mojave Desert on a hot August day in 1976, you would understand it better. Were one, mouth parched, despite the steady intake of water, suddenly to see in the midst of the endless specter of rolling sandy desolation, a cross on the horizon, it would likely do a soul good, regardless of religious belief or complete absence of it. For it connotes, first and foremost, some semblance of civilization not far from hand.

Put a new sucker washer in her, for you may find the leather dry.

The front page offers little of added note this date. The Nazis were reported to be attacking the lower Volga, south of Stalingrad, in the Kalmyck territory, apparently trying now to obtain ground toward Astrakhan at the mouth of the Volga on the Caspian Sea, surrounding and cutting off Stalingrad from supplies while affording the potential of a sea route to the target of the operation, the primary oilfields of Baku.

On the editorial page, Dorothy Thompson addresses some probing issues regarding the Stalin note urging the opening of an immediate second front by Great Britain and the United States, lest Russia begin acting as a free agent from the other Allies, renouncing its accord of August 1941, promising mutual support and intent not to enter any separate peace with the Axis. Ms. Thompson suggests that with all the anti-Communist rhetoric still floating about America, Stalin would be beyond reproach and only acting shrewdly, should he suddenly announce a call for unity among the proletariat in Europe against the Fascist order of the Axis and "their Anglo-American stooges".

Thus, she maintains, it would be not only practical but smart for the U.S. and Great Britain to open the demanded second front, to pretermit any such effort of Stalin to make inroads on the psychological unity of Europe's masses which might otherwise become helpful in promotion of Soviet expansionsim in a post-war world.

Ms. Thompson, in other words, uses a bit of psychology on those of her readers who were determinedly rightwing and reactionary despite themselves and their own inherent best interests, bitter to the end in opposition to anything which smacked of aiding the Devil incarnate, Soviet Russia, including by not doing so, aiding their more palatable philosophical ally, the Devil incarnate of Nazi Germany.

Without meaning to draw too close a parallel, even if perhaps psychologically closer in the minds of many than we fully realize, it reminds us somewhat of the recent flak which the President has received from the Right over his failed promotion of Chicago as a site for the 2016 Olympics followed by these Rightists cheering the selection of Rio de Janeiro for the award by the Olympic Committee in Copenhagen. That, after conducting their own campaign to promote Chicago as a crime-infested bastion of corruption and probable pool of incestuous bastardy in order to nix it as a selected site, all to diminish the President in the eyes of the nation and the world, these same Patriots who for eight years past contended that anyone who dared protest the war in Iraq was not only unpatriotic but a probable terrorist, certainly at least a terrorist sympathizer, and one who ought be confined to Gitmo with the others of his or her ilk without rights or recourse, without the right to naysay the commitment, certainly at least interrogated and unworthy of social intercourse, the doubtless product of incestuous bastardy among licentious libertines.

Today, we assume that these same Patriots, out of the philosophical consistency of which we know they are the primogenitive exemplar representatives among us, are loudly applauding the President's receipt by the Nobel Committee in Norway of the annual Nobel Peace Prize.

President Obama is only the third sitting United States President to receive the award, and the first since Woodrow Wilson in his seventh year in office, 1919, for his work to construct, with his Fourteen Points, a post-war world free from the incidents precipitating World War I. Theodore Roosevelt received the prize in its sixth year of presentation, 1906. Former President Jimmy Carter received the award in 2002.

The award, incidentally, was not given between 1939 and 1943, it having gone to the Red Cross in 1944 and to Secretary of State Cordell Hull in 1945.

In any event, what about that $2,000 per year limit on salaries proposed by the very wealthy Clare Boothe Luce, running for Congress as a Republican from Connecticut? Adjust it for inflation and take that one up in 2010 as a rallying cry, Republicans. She won the seat, after all, and not just once, but twice. Maybe you will, too. After all, limiting personal incomes is what true economic conservatism is, is it not? That is what we divine from the record of the last eight years, anyway. Q.E.D.

Come to think of it, you could paint that cross red, couldn't you, and avoid the whole religious notion? Or could you? Should the government support the Red Cross? Regardless, should you undertake that task, prime it first with some Kilz. For rust never sleeps.

Anyway, (and that despite "anyway" being second only to "whatever" in the recently announced results of a poll to determine the most annoying words currently in common usage, on which, for its exclusion of both "cool" and "awesome", we place no reliance whatsoever for its obvious demographic skew), the cross is in the ballpark.