The Missing Buddhists

          The Buddhists disappeared from the Supreme Court's recent case, Salazar v. Buono, about a government-sponsored cross in California's Mojave Desert. The Buddhists received more attention from the Ninth Circuit when it ruled in 2004 that the display of the cross on government property was an unconstitutional establishment of religion. In 1999, the court noted, the National Park Service had declined a request by a Buddhist group to build a stupa near the cross. A stupa is a "hemispherical or cylindrical mound or tower, artificially constructed of earth, brick, or stone, containing a relic chamber and surmounted by a spire or umbrella; esp., a Buddhist mound forming a memorial shrine of the Buddha." 

          The Ninth Circuit recognized correctly that, at a minimum, the Establishment Clause forbids the government from preferring one religion over another. Starting with that principle, the conclusion in the cross case was easy. If the government funds the Christian cross while refusing a request from a Buddhist group to share the public space, then it has favored Christianity over Buddhism, a preference for one religion over another that is clearly unconstitutional.

          In the Supreme Court, only Justice Stevens' dissent mentioned the Buddhists, and they did not play a prominent role in his decision. 

          Justice Kennedy never mentioned them in his opinion for the Court. Instead, Kennedy spent most of the opinion explaining why Congress was justified in transferring the land under the cross to private parties after the Ninth Circuit ruled that the cross could not stand on public land. To remove the cross, argued Kennedy, would show disrespect for the war dead. He therefore ordered the district court to reconsider Congress's legitimate motives for transferring the land to the private group.

          Justice Samuel Alito went much farther than Kennedy in concluding that the transfer was constitutional. Although the cross is of course the preeminent symbol of Christianity, he explained, the Mojave Desert cross is also a memorial to the American war dead of World War I, a plain unadorned white cross evoking the unforgettable image of the white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict. Its war memorial status, Alito argued, gave the Congress sufficient reason to preserve the cross by transferring it to private ownership.

          Alito acknowledged that the World War I cemeteries overseas included white Stars of David as well as white crosses because 3500 Jewish soldiers died in that war. Congress might have chosen to place a Star of David on Sunrise Rock so that the monument would duplicate those two types of headstones. But Congress may well have thought--not without reason--that the addition of yet another religious symbol would have been unlikely to satisfy the plaintiff, his attorneys, or the lower courts. Or the Buddhists? With that reasoning Alito justified the exclusion of Jews from the memorial as well. 

          Speaking of Jews, at the oral argument, when Buono's lawyer stated that the cross is a Christian symbol, and that there is never a cross on a tombstone of a Jew, Justice Scalia indignantly replied: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion. 

          It's more outrageous that the Court issued an opinion that did not even consider that the stupa and the Star of David should share equal space with the cross.