There’s no Establishment Clause exception for de minimis violations, but if there was, this would be a prime candidate. The cross is five feet tall; it’s located in a desert; it’s been there for decades with no complaints until recently; and it’s designed as a war memorial. In fact, the land on which it sits doesn’t even belong to the federal government anymore. Congress transferred it to the VFW years ago precisely in order to avoid a church-and-state challenge. The risk that anyone’s going to stumble upon it and feel the heavy hand of government nudging them towards Christ is, in other words, remote. And yet this court battle has been raging for fully nine years, ending this morning in a 5-4 decision at the tippy top of the judicial food chain featuring six different written opinions. Not only that, the ruling doesn’t even provide any broad guidance: The issue that decided the case was whether a lower court’s injunction preventing the cross from being displayed on federal land could be nullified by having Congress transfer the land to a private owner. Answer: Yes. Which, I suppose, raises the question of what would happen if the government started building churches and then selling them off to private owners, but since that’s not going to happen in any sphere of reality outside of a Dawkins polemic, let’s not dwell on it.

Here’s the opinion. An interesting detail noted by Stevens in dissent: Ownership of the land isn’t the only Establishment Clause issue here.

The 2002 injunction barred the Government from “permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” App. 39. The land-transfer statute mandated transfer of the land to an organization that has announced its intention to maintain the cross on Sunrise Rock. That action surely “permit[s]” the display of the cross. See 11 Oxford English Dictionary578 (2d ed. 1989) (defining “permit” as “[t]o admit or allow the doing or occurrence of; to give leave or opportunityfor”). True, the Government would no longer exert direct control over the cross. But the transfer itself would be an act permitting its display…

In my view, the transfer ordered by §8121 would not end government endorsement of the cross for two independently sufficient reasons. First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding that the name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display. Congress’ intent to preserve the display of the cross maintains the Government’s endorsement of the cross…

Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect. As far as I can tell, however, it is unprecedented in the Nation’s history to designate a bare, unadorned cross as the national war memorial for a particular group of veterans.Neither the Korean War Memorial, the Vietnam War Memorial, nor the World War II Memorial commemorates our veterans’ sacrifice in sectarian or predominantly religious ways. Each of these impressive structures pays equal respect to all members of the Armed Forces who perished in the service of our Country in those conflicts. In this case, by contrast, a sectarian symbol is the memorial. And because Congress has established no other national monument to the veterans of the Great War, this solitary cross in the middle of the desert is the national World War I memorial. The sequence of legislative decisions made to designate and preserve a solitary Latin cross at an isolated location in the desert as a memorial for those who fought and died in World War I not only failed to cure the Establishment Clause violation but also, in my view, resulted in a dramatically inadequate and inappropriate tribute.

It’s a good thing he’s retiring because that “this is the national World War I memorial” argument would be grounds if he wasn’t. I take his point — honoring Jewish, Muslim, Buddhist troops, etc, with a cross is rather insufficiently nuanced — but if the worry is observers feeling influenced by the display, how does Stevens justify the religious symbols on the headstones at Arlington? There’s theoretically no government endorsement problem there since servicemen get to select their own insignias, but (a) it is federal land and (b) seeing so many crosses associated with such valor, even with stars of David and crescents mixed in, is more powerful than some puny cross in the desert. To be clear: I have zero problem with it. Just wondering how JPS squares that circle.