Michael Gaynor
Elena Kagan and the Mohave Cross
By Michael Gaynor
May 27, 2010

It is the tyranny of the secular extremist minority that needs to be stopped and General Kagan isn't one to stop it.

Americans United for Separation of Church and State is right about something: Supreme Court nominee and Solicitor General Elena Kagan should be questioned during her confirmation hearing on her views concerning church-state issues. "We simply don't know much about Elena Kagan's views on church-state separation," said Barry W. Lynn, executive director of Americans United. "It's the job of the Senate Judiciary Committee to fill in the picture by asking her questions about how religion and government should interact."

Lynn: "The Supreme Court is deeply divided over issues such as tax funding of religion, the role of religion in public life and the limits of religious freedom. We urge the U.S. Senate to ascertain Kagan's basic judicial philosophy in an area that is crucial to so many Americans."


Lynn is out to make secularism the national religion and upset that General Kagan defended the federal statute at issue in the Mohave Cross case, Salazar v. Buono (http://www.supremecourt.gov/opinions/09pdf/08-472.pdf).

She was "the Tenth Justice" (as the Solicitor General is often called), not one of "the Nine," and she wanted to become one of "the Nine." Refusing to defend the federal statute would not have changed the ultimate decision, but it might have killed her chance of becoming a Supreme Court Justice.

Lynn seems to want to be certain that General Kagan really does believe what she wrote as a United States Supreme Court in a memo for Justice Thurgood Marshall adopting a separationist viewpoint and stating that religious groups should not be able to receive public funding for certain secular activities.

He shouldn't worry about that, and he helps her by expressing concern.

During the process of being confirmed as Solicitor General, Kagan pleaded "youthful indiscretion" and described her analysis in that memo as "deeply mistaken" and "utterly wrong."

Secular extremists like Lynn were very upset with the United States Supreme Court ruling in the Mohave Cross case.

Not long after the Mohave Cross was stolen.

"JulietEcho" (http://friendlyatheist.com/2010/05/11/mojave-cross-stolen/) may have explained why it was stolen:

"I don't think they'll be dumb enough to put up another cross in its place. The long, labored justification involved in this case included a convoluted array of topics, including the concepts of private land, historical value, the fact that the government didn't build it but rather made an existed structure an official monument, etc. If they build a brand new cross, historical value is out the window. And they can't build one on government land — or at least they'd be wise not to, given that they'd be facing more lawsuits.

"There was already a 2004 ruling, as Stevens pointed out in the dissent, that shot down the argument that the cross could be erected on government ground due to its dual nature as a somehow religion-neutral memorial and as a Christian symbol.

"Apart from ethical concerns, if I lived in the area I'll admit I'd be a bit grateful, not having to drive past such a morbid, alienating eyesore all the time."

The theft strikes me as an unlawful attempt to defy a United States Supreme Court decision.

An unauthorized replacement cross was quickly taken down after it was erected. Linda Slater, public information officer with the Mojave National Preserve, said, "The main reason that we can't put a replacement cross up or allow one to be put up is because we are under court order to not display a cross on Sunrise Rock."

What does Supreme Court nominee and Solicitor General Elena Kagan have to say about whether replacing the Mojave Cross is constitutionally permissible?

Secular extremists are either ecstatic or concerned that the theft might prove counterproductive.

On May 11, 2010, "Sue D. Nymme" commented at friendlyatheist.com (where many commenters seem hateful and hostile instead of friendly):

"I hope it gets repeatedly stolen, over and over again, forever.

"The cross IS vandalism. Stealing it is the equivalent of erasing graffiti."

"Jon" wondered: "But is it theft or is it a conscientious citizen removing litter from the environment? After all someone who removed a cigarette packet from the Mojave would be seen in a positive light except by those who want cigarette packets lying around. The only difference between those who think it OK to leave cigarette packets lying around and those who think it's OK to leave crosses lying around is numbers — and as the religious are fond of saying — it's not a numbers game."

"Prime Numbers" commented: "I think...given the wrong and obviously biassed decision by some of the judges in the case, that I can fully understand the frustration for the cross still being there."

Does General Kagan considered the five justices who comprised the majority in the case "obviously biassed" (sic)?

"Frank" warned: "To all of you who say this wans't the right way to handle it, I have to ask, what was? I'm all for resolving conflicts peacefully through the legal system where possible, but that was tried in this case, and it didn't work. And when the legal system fails, might there be a point at which action outside the legal system becomes necessary? I'm not saying taking the cross was right in this case, but to say that this isn't the right way to handle it when the right way doesn't work seems very empty."

What does General Kagan think about that?

Practical "Leilani" was upset with both the stealing and the Cross:

"Stealing is wrong. Period.

"I am all for civil disobedience, but I have to agree that, as ugly as the stupid thing was, this wasn't the way to solve the problem.

"I hope it wasn't an Atheist. Beating down nativity scenes and stealing crosses isn't the way to make headway with the religious."

"Immortality LTD" wondered, "What are they so upset about? The guy they nailed to it disappeared after 3 days, too")?

"Ted" was delighted: "Actually, it *IS* the way to fix the situation. The f...ing thing is gone, is it not?"

But "angrymonkey" took a "compromise" position:

"Okay, am I the only one here who thinks the controversy over this cross is insane? I strongly support the separation of church an state. I thought getting rid of the national day of prayer was a good move. However taking down an eighty year old monument seems ridiculous.

"I'm curious how this is different from the Taliban knocking down the statues of Buddha a few years ago. True the monuments are on a different scale, both artistically and historically, but it is still destroying a piece of history.

"I can fully support protesting publicly funding new memorials that overtly support a religious agenda. However I it leaves a bad taste in my mouth watching people tear down (either with lawyers or hacksaws), a monument dedicated to the soldiers of WW1."

Is General Kagan a "Ted" or an "angry monkey" or a "Leilani"? Or is she with "Immortality LTD"?

Does General Kagan agree with her friend and soulmate President Obama about where religion belongs in America?

Who thinks not?

Then presidential hopeful Obama explained his difficulty with winning over working-class voters in Pennsylvania and the Midwest, saying they have become frustrated with economic conditions. "...it's not surprising then that they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations," he said, unaware that he was being taped.

Saavy "NoYourGod" warned theft enthusiast "Frank":

"Frank — there is a major weakness in your argument. We ARE a nation of laws. For better or worse, the courts (somehow) ruled that the cross was not a religious symbol and should be allowed to stay.

"Imagine if one of the more whacked-out teabaggers decides that you have a point — but in this case, he feels the courts ruled incorrectly on President Obama's eligibility for office.... Well, using your logic, that whacko is justified in removing the errant office-holder from office."

Will the fear-of-retaliation consideration cause General Kagan to pause?

Finally, "environmentalist" "Vas" insists any replacement should be a long, costly process.

"Vas"(surely with tongue in cheek):

"...the cross is now gone and someone will want to erect a new one. Alright I'm fine with that, so get on with it. First I would expect to see a full EIR on the site, along with requite public comments. also if security measures such as Richard describes are needed I will expect to see full EIRs for them as well. They used the law to keep the cross there and now that some unknown person or persons have removed the cross the replacement cross will need to meet certain legal criteria. You can't just erect things in sensitive environments without proper permits and those require EIRs. You may not agree with the unauthorized removal of the cross but I would hope that you all would also be against the unauthorized replacement of the cross without a proper EIR, public comment period, proper engineering, proper permits fees and inspections.

"This has now become about the protection of our sensitive desert environment, they have already defaced the rocks by drilling holes and setting bolts, let's be sure this type of thing stops here."

It is the tyranny of the secular extremist minority that needs to be stopped and General Kagan isn't one to stop it.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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