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Wednesday, October 7, 2009

Cross in the Mohave Desert

There is currently a political conflict concerning a cross that is standing in the Mohave desert.

Background: In 1934, a group of veterans erected a cross in the desert as a memorial to those who died in the Great War (now known as World War I). In 1994, this land was made into a national preserve, hence it is now "federal land".

A man, supported by the ACLU (naturally) has filed a suit to have the cross removed, claiming that the cross violates the separation of church and state.

There are several problems here. First, any suit requires that the plaintiff have "standing", that is, he must be personally involved in the case. Unless he was personally harmed ("damaged"), he has no ground to file a suit. But he is claiming that he was offended by the cross, which is argued to give him standing in the case.

Second, the Constitution doesn't require a "separation of church and state". It requires that "Congress shall make no law respecting an establishment of religion". That means that Congress should not make any law that concerns any religious organization. Yea, right. They have made lots of law concerning religious groups. But the Constitution says they are not supposed to. As far as Congress is concerned, religious groups do not even exist. That means no laws for them, and no laws against them.

Third: "Congress". The cross was erected by a group of veterans, not the Congress, so the amendment does not apply. Actually, states can (short of more recent court decisions) establish their own religions, and many did so, though they have since been discontinued. Only Congress is restricted by this amendment.

Fourth: "establishment of religion". This is a cross, not an organization, so the amendment does not apply. Which technically means that Congress would be free to make laws concerning this cross if they wanted to, just not restrictions (see the next point). I'm sure the ACLU would like a law that any cross must be lit 24/7 at government expense, unless requested otherwise by the cross's owner...

Fifth: The amendment doesn't stop with forbidding laws concerning establishments of religion. It goes on: "or prohibiting the free exercise thereof." That means that even if a law does not directly concern a religious group, it cannot restrict them. That means that Congress cannot make any law that would restrict this cross in any way. Of course, the lawsuit is handled by the courts, not Congress, so that doesn't apply either.

We see then, that IF this guy is deemed to even have standing to file a suit, the only results would be that he could seek damages for the offense. But he has no monetary claim, since nothing was damaged. He could seek some psychiatric opinion that he has suffered, but he would still have to determine some monetary loss for damages to be awarded - lost productivity or such. Awards for "pain and suffering" generally require gross negligence or some other fault on the part of the defendant.

So, even if this guy won his case, he still gets nothing. Other than maybe an injunction. Yea, issue the cross a restraining order so it can't stalk the guy. If the guy is "harmed" after knowing the "danger", then it's his own fault. You can't sue a stove manufacturer after you've been warned not to put your hand on the burner.

Remember, this cross is only eight-feet-tall, and it's in the middle of the desert. It's not like he's likely to see it on his way to work or anything. But even then, it's freedom. If this guy doesn't like freedom, he can use some of his freedom to move somewhere else.

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