Barry, we’ve discussed this before, but I wanted to bring you an update on our filing at the Supreme Court of the United States.  In the case of Salazar, Secretary of the Interior, et al., v. Buono, we have filed an amicus brief in support of the federal government’s position – and on behalf of 15 members of Congress – asking the high court to uphold the long-standing cross display in Mojave Desert in California.

In our brief  we make a strong argument that this challenge has no place in federal court. 

“This case is only the most extreme example of a phenomenon that has plagued the federal courts for the past three decades,” the brief asserts.  “Ideologically motivated citizens and public interest groups search out alleged Establishment Clause violations, almost always in the form of a passive religious symbol or display of some sort, and make a federal case out of offense at the display.”

The brief also contends that those who are offended by government speech or displays should not be permitted to use an Establishment Clause claim to seek relief in federal court.  And, Barry, you may not like it, but the fact is that the lax rules governing who can sue under the Establishment Clause are not consistent with the Constitution and separation of powers doctrine.

“The basis for standing is typically that the religious display offends the sensibilities of the plaintiffs,” according to the brief.  “The offense may be characterized as an affront to religious values, or as one in which plaintiffs feel stigmatized as political or community outsiders.  But the sum and substance of the injury is that the display bothers the plaintiffs.” 

In addition to representing our organization, we represent 15 members of the 111th Congress – including House Minority Leader John Boehner.  Also included are these members of the U.S. House of Representatives:  Todd Akin, Michele Bachmann, Roy Blunt, Eric Cantor, Randy Forbes, Scott Garrett, Walter Jones, Jim Jordan, Doug Lamborn, Thaddeus McCotter, Jeff Miller, Mike Pence, Joseph Pitts, and Joe Wilson. 

The history of this case goes back many years.  The Veterans of Foreign Wars (VFW) built a cross more than 70 years ago to memorialize fallen service members in a remote area that is now part of a federal preserve. After the National Park Service denied a request to build a Buddhist shrine near the cross in 1999 and declared its intent to remove the cross, Congress designated the cross and an area of adjoining property as a national World War I memorial. 

A lawsuit was filed challenging the cross and, after the federal district court held that the federal government’s display of the cross violated the Establishment Clause, Congress directed the Department of the Interior to convey one acre of property that included the memorial to the VFW in exchange for a five-acre parcel of equal value.  But the U.S. Court of Appeals for the Ninth Circuit determined that the cross – and the land transfer – violated the Establishment Clause and ordered it removed.

The truth is the high court should reject this legal challenge and conclude that the government’s action is not only appropriate but constitutional in this case. It’s time for the high court to put an end to this disturbing practice of permitting the ‘offended observer’ from filing these Establishment Clause claims.

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