In the instant case the Tenth Circuit ruled that fourteen crosses erected and maintained by a private group, the Utah Highway Patrol Association (UHPA), on state land constituting the verge of highways violate the Establishment Clause. While not marking graves as is the case with crosses or Stars of David on the final resting place of American service members, the intent of the UHPA was identical--the commemoration and honoring of individuals who were killed in the line of duty.
Five years ago a Texas based group, American Atheists, won their case in the district court. The crosses were found to be an explicit statement of support for Christianity on the part of the State of Utah. The crosses remained in place pending appeal. Now the crosses must go unless an appeal is made to the SCOTUS and the order of removal stayed.
In its ruling the Tenth Circuit held that there was a critical difference between crosses or other religious symbols on military graves in national cemeteries and those on the Utah highways. In the case of national cemeteries viewing crosses or other religious symbols is voluntary; you have got to go there to see them, while the highway bordering crosses are perforce inflicted upon all who pass. Thus, their existence was construed to place an official stamp of approval on both cross and the religion for which it is iconic.
This conclusion is a piece of blithering judicial idiocy. For generations, centuries, in American history and culture, the cross has been generally accepted as a sign of honored death--or even of death itself as witnessed by the use of the cross symbol to indicate date of death in both historical and genealogical writing. The use of the cross in this role for so long has served in a very real sense to denature it of purely religious significance.
The cross, in short, has profound cultural significance entirely apart of its more specialized application to a specific confession of faith. As such, no person, no matter how hostile to the idea of a deity, should take offense. No person, again without regard to the depth of that person's distaste for and disgust with any particular or all religions, can take genuine offense--unless, of course, that person is willing to admit of abysmal ignorance of American cultural symbols and their evolution.
In this decision the Tenth Circuit has continued the long and far from laudable judicial tradition of needlessly sticking a black robed finger in the eyes of Christians. Crosses to commemorate death, creches, or carols at Christmas or any number of other predominantly cultural--dare one write "secular"--symbols which served for decades as definers of the shared American experience have been heedlessly and baselessly heaved out of the public square. While it is completely justifiable and Constitutionally proper to preclude forcing the taxpayer to fund religious entities and activities, the same cannot be maintained regarding symbols which might have arisen from a specific religious context but have gained the amorphous status of cultural definer, part of the context which defines We the People as a specific nation, an identifiable "us."
The Tenth Circuit should have adopted a leave it alone stance in this case. Insofar as there can be any genuine controversy it exists in the political sphere--not the judicial one. The same is true of the "Ground Zero" mosque and community center.
The unwise, ill-advised, insensitive, rather arrogant action of the people behind the Cordoba House (to use the original and accurately supremest name) is not one which can be nor should be challenged in court. It is not even one which is amenable to settlement through electoral politics.
Rather the Cordoba House initiative demands address through politics of the largest sort--the politics, the power of public opinion. As the Geek has posted previously, any blocking of the "Ground Zero" mosque through judicial or formal political process would serve to benefit the aspirations of adherents of political Islam. That is an outcome which must be avoided.
However, the collective, negative view of the vast majority of Americans constitutes politics at the ultimate level. Public opinion can and should express outrage at the very idea of placing a swimming pool, auditorium, various other non-religious venues as well as a mosque in the metaphorical shadow of the Twin Towers. A very firm, collective, "NO," is not "Islamophobic," rather it is, like the crosses on Utah highways, a definer of that messy aggregation called "We the People."
The rejection of Cordoba House by Americans generally is not prejudice, nor is it an attempt to inhibit free exercise of anyone's faith. It is an effort, hopefully a successful one, to insist upon respect for American sensibilities, American grief, American loss, American humiliation and recovery. Symbols matter--so does their absence.
