it could provide clarity to the court’s blurry rules on
church-and-state separation.” It could also not provide clarity–and that’s what I’m betting on.
For sure, the court will in due course find that the cross either does or doesn’t violate the First Amendment’s ban on laws “respecting an establishment of religion.” And it has opened the door to doing the latter by ruling in its last Ten Commandments case (2005) case that the, ah, original intention of the erectors of a religious display means the difference between constitutionality and unconstitutionality. It seems that the Mojave cross was not erected for religious purposes, but simply as a World War I memorial.
Over the years, the Mohave Cross has become a place where people gather for Easter sunrise services, so clearly religious significance has accrued to it. Anyone passing by the Mojave Easter ceremonies could be forgiven for
imagining that this amounted to a government establishment of religion. On the other hand, I suppose if a bunch of Bavarian Illuminati decided to gather ’round the Washington Memorial regularly to celebrate the God of Reason, someone might make a case that the memorial had become a religious symbol and ought to be dismantled for the sake of non-Illuminati sensibilities.
It does seem likely that the court, with Sandra Day O’Connor replaced by Samuel Alito, will decline to order the cross removed. Whether its rationale will sort out our Establishment Clause jurisprudence is another question altogether..