To its credit, the Obama administration disagrees. “The decision below, if permitted to stand, calls for the government to tear down a memorial cross that has stood for 58 years as a tribute to fallen service members,” the Justice Department wrote in a brief asking the Supreme Court to overturn the Ninth Circuit ruling. “Nothing in the Establishment Clause compels that result, because the Establishment Clause does not require eradication of all religious symbols in the public realm."
The Supreme Court has decided not to hear the case at this time, turning the issue back over to lower courts. But even Solicitor Gen. Donald Verrilli Jr. says that if the cross must be removed, the case "unnecessarily fosters the very divisiveness” about religion that the Constitution intended to prevent.
There are other recent challenges to religious freedom.
Frank Buono filed a lawsuit some years ago requesting that an 8-foot tall cross in the Mojave Desert be removed because he “claims to be offended by the presence of a religious symbol on federal land.” The cross is part of national memorial to the 300,000-plus American soldiers who were killed in World War I.
Buono’s case went all the way to the Supreme Court, which shot him down by a 5-4 margin. Justice Anthony Kennedy wrote for the majority that the Constitution’s Establishment Clause “does not require eradication of all religious symbols in the public realm.”
Note how close that vote was. As legal expert Brian Walsh (then at The Heritage Foundation) wrote at the time, “If the Court had affirmed the Ninth Circuit’s extreme decision, it would have opened the door to legal challenges eliminating Stars of David, crosses, and similar religious symbols found, for example, on soldiers’ graves in Arlington National Cemetery and every other federal cemetery.”
As long as there have been humans, they seem to have always worshipped a god or gods of some kind. The genius of the Founders was in allowing people to worship any faith (or no faith) as long as they “demean themselves as good citizens,” as George Washington phrased it in a letter to the Hebrew Congregation of Newport, R.I.
It bears repeating: Americans enjoy freedom of religion, not freedom from religion. Trying to obtain it is a misreading of the Constitution, and a waste of time and energy to boot.