Newt Gingrich: Supreme Court stopped a great injustice

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April 29, 2010
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WASHINGTON, D.C.—APRIL 29, 2010 --- Former Speaker of the House Newt Gingrich, honorary chairman of Renewing American Leadership (ReAL), announced temperate support of yesterday’s 5-4 decision by the U.S. Supreme Court in Salazar v. Buono -- the Mojave Desert Memorial Cross case. Attorneys for Renewing American Leadership had filed an amicus brief in the case arguing for the preservation of the cross.

“The court stopped a great injustice, for that, the five justices should be applauded,” Gingrich said. “But this is a limited victory in a long struggle. While the court preserved the Mojave Memorial Cross, the outcome was far from decisive or broad enough to protect religious freedom in the public square.”

Gingrich went on to point out that that every judicial appointee is now pivotal as one Obama Supreme Court nominee could reverse the outcome in a future case.

This case has been watched closely, in part, because it was a first religious freedom case to come before the court under Chief Justice John Roberts. “Defenders of religious freedom can take some comfort in the language found in the opinions of the majority,” said Jim Garlow, chairman of ReAL. “The court is signaling that it has reached its limit on the evolving revisionist legal casuistry that changed the phrase ‘establishment of religion’ from meaning the proscription of state-controlled churches or forced participation -- the Framer’s intent -- to the absurd presumption that all public religious symbols and expression must be eradicated.”

Justice Kennedy, who has been a swing vote on issues surrounding religious freedom, included some of that reassuring language in his written opinion that avoiding Establishment Clause issues does not require eradication of religious symbols. In particular, he noted the strong tradition of honoring veterans with crosses. A three-justice plurality said that “[t]he Constitution does not oblige government to avoid any public acknowledgement of religion’s role in society.”

The Mojave Desert Memorial Cross as it has become known was first erected as a simple wooden cross in 1934 by the Death Valley Chapter of the VFW to commemorate the men and women who died fighting for freedom in World War I. The land upon which a cross of one kind or another stood for over 75 years became part of the Mojave National Preserve in 1994 when the park was created. Shortly thereafter, Buono, a National Park Service employee won a case in the Ninth Circuit Court to have it removed.

Yesterday’s decision was limited to the narrowest possible grounds of whether an effort by Congress to transfer the small parcel of land where the cross is located to private ownership was constitutional.

Justice Kennedy was insistent on not deciding the issue based upon whether an “offended observer” has standing to challenge this or other religious displays because that was not the question before the court. That was the question in an earlier case brought by the same plaintiff. In that case, the Ninth Circuit had ruled that the cross violated the Establishment Clause of the First Amendment to the Constitution, but the Department of Justice under the Bush administration failed to appeal the ruling so the injunction to remove the cross was to be upheld. The Congress attempted to intervene by transferring a small parcel land where the cross is located into private hands. The case decided yesterday came about because the plaintiff, the former National Park Service employee now living in Oregon, claimed that the remedy sought by Congress was merely to avoid the court injunction and the Ninth Circuit agreed. The Department of Justice, this time, did appeal the ruling.

The Supreme Court said in its decision that the lower court was wrong to assume Congress had bad motives in enacting the land transfer, that honoring Congress’ intentions was important, and that the land transfer proposal was constitutional instructing the lower court to reexamine it. The limited decision therefore, did not set definitive or clear guidelines for similar cases in the future.

Because the Mojave Memorial Cross is a simple cross that stands alone with no context, the narrow ruling limited to the land transfer issue may have saved the cross. The court’s previous rulings favor parameters for religious symbols on public property that include context such as being part of a larger display or where competing symbols are present.

“For now, the Supreme Court has left unanswered the question of how a memorial cross in the middle of the desert constitutes the establishment of a religion,” said Rick Tyler ReAL’s founding director. “The answer, of course, is that it doesn’t.”


Renewing American Leadership (ReAL) is a not-for-profit 501c3 organization. The mission of ReAL is to preserve America’s Judeo-Christian heritage by defending and promoting the three pillars of American civilization: freedom, faith and free-enterprise.