Two days ago I had the opportunity to do a radio debate with Dr. Jeremy Gunn, Director of the ACLU’s Religious Freedom Project. Let me say at the outset that I found Dr. Gunn to be a courteous and intellectually honest man, and I am grateful for his willingness to discuss with those having a different point of view the often heated question whether the Cross may properly, under the First Amendment, be displayed on government property as part of a war memorial to fallen soldiers.
I am in no positon to make a judgment about who “won” this debate. Those who had the chance to listen to it should draw their own conclusions. (If any of our readers heard it, I would welcome their assessment of how it went). I do want to mention one point, however, where in my view the ACLU position came up short.
Part of the debate concerned the war memorial in the Mojave Desert. A Cross is displayed there, although at present it is covered by a box — this a result of a court order forbidding the display, at least until a higher court has the opportunity to rule on the matter. It is my understanding that the Cross is eleven miles from the main road, so getting to a point where one could even see it is no small feat.
The ACLU is litigating whether the Cross may remain. The gist of the ACLU suit, in this and similar litigation, is that having only a Cross shown at a war memorial sited on government land is an impermissible establishment of religion, namely Christianity, at odds with the First Amendment.
The problem with this position in the Mojave Desert case is that the land on which the Cross is located is no longer owned by the government. It is private property, having been given over to a private group in order to meet the ACLU’s objections. Yet the ACLU still wants the Cross removed, arguing now that the plot of private land is too small to create any meaningful differentiation from the surrounding parcel, which is still government owned, and (I believe) that the bidding process under which the private organization obtained the land was tilted toward a group that it was known wanted to keep the Cross. The ACLU characterizes this as “evading” the First Amendment.
I characterize it as complying with the First Amendment. The Constitution poses no barrier to erecting a Cross on private property. Thus, the fact that the Mojave Desert site now is private property should have been the end of the ACLU’s interest in the case. Whether the amount of private land surrounding the Cross is “big enough” has little if anything to do with the constitutional principle that, so we are told, was at the heart of the ACLU’s original concerns. Under these circumstances, it is fair enough to ask whether the real motivating factor here is less constitutional rectitude and more old-fashioned hostility to religion. This single case does not, in my judgment, answer that question, but it makes it a fair question.
I have no doubt that some on the ACLU’s side bear no hostility toward religion, and are committed, however mistakently in my view, to what they see as a constitutional principle. But I likewise have no doubt that there are some who simply dislike religion, or detest it, and it would bolster the ACLU’s credibility to admit as much.
My suspicions in that regard are heightened by the particular facts of this case. The memorial is literally in the middle of the desert. Once a person arrives at general site, which would take some doing given its location, he would need to go another eleven miles, I believe on foot, to see the Cross. The idea that a memorial so remote does irremedial damage to the Constitution — or does any damage at all — is so far-fetched as to border on the preposterous. Under the circumstances, it is dificult to see the ACLU’s determination to persist with this suit as motivated by anything other than an obsession, and not by either legal, much less analytical, thinking.