August 16, 2006
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What's the best thing to do about religious monuments that are currently on public grounds? Today, a split panel of the Fifth Circuit affirmed a decision ordering one such monument removed. The monument honors a local citizen, but features an open bible as part of the display, to honor the man's Christian faith. So there's some dispute about what the purpose of the monument is, how prominently it focuses on religion, etc.
But assume a more clear-cut case, like say the Soledad Cross in San Diego. This is a 43 foot tall cross that weighs 24 tons and is perched prominently on a large hill. It's part of a U.S. Veterans monument, and its presence has been found it violate the California Constitution. See generally 782 F. Supp 1420 (S.D. Cal. 1991) and subsequent history. There's a lot of side manuvering going on now because the Federal Government is going to use eminent domain -- a way to force the land's owner to sell -- to purchase the land the cross sits on. And once the property belongs to the Federal Government, the Supremacy Clause pre-empts any restrictions the California Constitution could place on activities on the land, effectively thrusting aside 15 years (at least) of litigation. Instead, the case will have to be relitigated under the First Amendment of the Federal Constitution.
Back to my initial question. Suppose the presence of the cross does violate the First Amendment. (Personally, I think it does, but there's arguments to be made the other way.) What's the appropriate remedy? The people who are challenging the cross in court want it torn out. This seems overkill to me. I understand that some people who see the cross looking down on them from the mountain might find it offensive. I don't think that religious symbols like this belong on government property. I also don't see the use in tearing it out. Then you just have a new set of people -- those who want the cross there -- upset, and you've taken this affirmative act that religious people will perceive as blatantly hostile to them.
There are other examples in law where we shy away from the drastic measure of a court order to tear a building out. For example, if I accidentally build a shed that protrudes a few inches into my neighbor's property, some courts will refuse to make me remove it. Instead, they'll order that I pay damages to buy encroachment from the owner. That makes sense since it prevents me from being unjustly enriched while compensating the adjacent landowner for what he's lost, which isn't very much anyway. (Note, there are some courts who will make me tear out the whole shed, and if what I did wasn't "accidental" that makes it far more likely the building will be torn out.)
This type of solution doesn't work in the cross case though. Putting aside objections that the cross case involves much more important interests and so isn't amenable to damages (surely a plausible argument), how do you pay out damages to random passers-by who feel offended by the cross? Do you have people sign up and swear under oath, "I'm offended" to make them eligible for damages? How do you measure the harm they've incurred? And in the end, does it even make them feel better... they're still passing by this cross that is continuing to offend them in the future. Plus, it seems pretty ridiculous to be paying out money from the Federal Treasury for things like this.
Since paying damages is infeasible and not what the plaintiffs want anyway, if you don't tear the cross out, you're really leaving them with no remedy. Violations of constitutional rights for which there are no remedies aren't unheard of, but that seems pretty goofy to me because if there's no remedy, what good is the right?
Ultimately, I think my ideal solution would be to leave displays like this up, but vigorously oppose installing any new ones like them. There's no reason to allow any government to build a new monument featuring Christian symbols on public property, but for monuments that have been there for 50 years or so... I can't see the benefit from campaigning actively to demolish them. This isn't a very intellectually pleasing solution, but it seems like a pragmatic compromise. (It's also similar to what Justice Breyer advocated in the Ten Commandments cases in 2005, although not exactly the same.)
Ordinarily I'm not much for comprising, but it's just hard for me to care that much whether the Ten Commandments or a cross or an open bible has made its way into a display on public property. And by actively campaigning to get older displays torn out, it gives religious groups ammunition to say that they are under attack by the liberal elite.
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