Law and Justice

Posts Tagged ‘Court’

Courts make determinations in law and in equity. By ‘in law’ is meant following a specific law – constitutional law, state law, etc. By ‘in equity’ is meant determining what is ‘fair’ to do where now law specifically rules. An example is determining how to distribute the assets in a divorce among the husband and wife.

Common law refers to the myriad of decisions made by judges and appeals courts. Maxims of Common Law are ‘guiding truths’. Adhering to them helps judges make fairer decisions. They’re ignored in family court determinations since fairness is a wholly secondary issue. This article overviews what these maxims are.

Maxims are absolutely essential to the preservation of rights and fair treatment to all litigants. Maxims:

* represent ‘self-evident’ truth – as mentioned in our Declaration of Independence when it referred to ‘all men’ as being created equal.

* serve to guide judicial determinations in the same way that ‘axioms’ guide the analysis of mathematical determinations

* promotes fair dealing and unbiased justice – a clearly essential issue in the purpose of courts

Courts, primarily established to enforce the principles of common law, are bound by common law rules of equity that should be grounded in the never-changing maxims. This grounding serves to restrain the court’s wanton discretion in equity law determinations.

Examples of Maxims:

Let’s take a look at some examples to see the nature of maxims -as self-evidently fair. Here’s an important one:

*The certainty of a thing arises only from making a thing certain.

This implies that the court should seek clear proof of allegations made against someone and not rule on just the allegations or weakly supported ones. Family court ignores these maxims all the time.

*The safety of the people cannot be judged but by the safety of every individual.

Laws which supposedly protect the safety of some people at the expense of other people’s rights violate this maxim. A clear example of such a violation is present day domestic restraining order laws which are rampantly and unjustly imposed upon so many fathers.

*Law is unjust where it is uncertain or vague in its meaning.

Laws should be clear so that one knows precisely when he’s breaking such a law. Remember the violation of laws brings consequences on those who violate them. Vague laws are considered unconstitutional. An example of vague standard of law is the ‘best interest of the child’ standard – used to unjustly deny fit fathers custody of their children.

*The Burden of Proof lies on him who asserts the fact -not on him who denies it.

This is based on the fact that you can’t prove a negative. Courts that force people to prove a negative are examples of kangaroo courts. Family courts jail fathers when they can’t prove that they don’t have money to pay!

*No one should be believed except upon his oath.

This simply means that anyone who will give testimony must be sworn in. That way he can be charged with perjury – which is a felony (a serious crime) – if he can be found to be intentionally lying. No ‘swearing in’ means no perjury and no penalty for lying.

*Perjured witnesses should be punished for perjury and for the crimes they falsely accuse against him.

This is the bottom line of enforcing honesty in court testimony. Unfortunately perjury is almost never punished -allowing the degradation of court integrity – so obvious in family court.

*Every home is a castle; though the winds of heaven blow through it, officers of the state cannot enter.

This is from English common law which made a man’s home sacrosanct. It should still be true. It requires officers to have warrants to enter a home. A warrant is permission from a judge based on good cause to enter a home.

*No man should profit by his own wrong or, He who does not have clean hands, cannot benefit from the law

This is self-evident. An extreme case is the child that pleads mercy because he’s an orphan – but only because he murdered his parents.

*He who uses his legal rights harms no one.

But, fathers are routinely punished by seeking their rights in family court.

*No one is punished unless for some wrong act or fault.

But forced into the noncustodial status for doing no wrong would be considered punishment by any reasonable person.

*It’s natural that he who bears the charge of a thing, should receive the profits.

If you have all the obligations for something but none of the benefits, then you are a slave.

Fathers who go to family court observe clear violations of these maxims all the time. Such violations mean that there is a tyranny taking place.

The Challenge to the NCLT & NCALT:

The five-judge Constitution Bench of the Supreme Court of India Justice KG Balakrishnan, Justice RV Raveendran, Justice DK Jain, Justice P Sathasivam and Justice JM Panchal has delivered its judgment on the legality of the constitution of National Company Law Tribunal and National Company Law Appellate Tribunal under the Companies Act, 1956 through Companies (Second Amendment) Act, 2002.

With the intention of establishing a Separate Tribunal to deal with all issues or disputes under the Companies Act, 1956, a Special Tribunal and Appellate Tribunal called National Company Law Tribunal and National Company Law Appellate Tribunal were sought to be established through the Companies (Second Amendment) Act, 2002. As per the said amendment, as soon as the Tribunal and the Appellate Tribunal is constituted, almost all powers exercised by the High Court under the Companies Act, 1956 sought to be transferred to the NCLT and NCLAT except the judicial review powers exercised under Article 226 and 227 of Constitution of India.

Sri R.Gandhi of Madras Bar Association has challenged the Companies (Second Amendment) Act, 2002 and especially the constitution of National Company Law Tribunal and National Company Appellate Tribunal.

The conclusion of Madras High Court:

Justice Jayasimha Babu of Madras High Court has delivered a considered and landmark judgment on the issue of legality of constitution of National Company Law Tribunal and National Company Law Appellate Tribunal. The background of the constitution of Tribunal in India as referred in the Judgment is as follows:

“The Tribunals which are largely a twentieth century phenomenon existed in this country even before the Constitution was framed. The oldest and best known Tribunal is the Income-tax Appellate Tribunal which had been functioning from the year 1941. Industrial Tribunals had also been established prior to 1950. Articles 136 and 227 of the Constitution refer to Tribunals, and make their orders subject to judicial review by the High Court, and with leave, to the Appellate jurisdiction of the Supreme Court. Numerous Tribunals have been created subsequent to 1950 by Parliamentary as well as State legislation. Their exact number however is not easily ascertainable. The Law Commission of India in its 162nd Report submitted in 1998 reviewed the working of the major tribunals in the country – the Income-tax Appellate Tribunal, Customs, Central Excise and Gold (Control) Appellate Tribunal and the Administrative Tribunals, and suggested certain changes to improve their functioning.

The object of constituting Tribunals is to provide a simpler, speedier and more accessible justice than ordinary courts are able to provide, as stated in Wade on Administrative Law. Yet another object of constituting Tribunals is to create specialist Tribunals which would include specialists in the filed, to adjudicate more efficiently and speedily the matters requiring adjudication in that field, and thus command the confidence of all concerned in the quality and reliability of the result of such adjudication.”

The Operative portion of the Judgment of the Madras High Court is as follows:

“In the light of foregoing discussions it is declared that until the provisions in Parts 1B and 1C of the Companies Act introduced by the Companies (Amendment) Act, 2002, which have been found to be defective in as much as they are in breach of the basic constitutional scheme of separation of powers and independence of the judicial function, are duly amended, by removing the defects that have been pointed out, it would be unconstitutional to constitute a Tribunal and Appellate Tribunal exercise the jurisdiction now exercised by the High Courts or the Company Law Board.

The petitioners have also challenged the validity of certain provisions of the Companies (Amendment) Act, 2002, whereby certain powers currently exercised by the Company Law Board, some of which were earlier exercised by the court, were transferred to the Central Government. Most of those powers are only tangentially judicial and are primarily administrative. There is no illegality in such transfer.”

The Judgment of the Madras High Court was a very detailed, considered and reasoned judgment. The Apprehension of the Petitioners who challenged the Companies (Second Amendment) Act, 2002 and the conclusion of the Court on the issue is summed up in one para of the Judgment as follows:

“The constitution of the National Company Law Tribunal and the Appellate Tribunal in the manner now provided, when considered along with the provisions concerning the Competition Commission under the Competition Act 2002, seems to indicate a pattern of an aggressive executive seeking to take over gradually the judicial power traditionally exercised by the courts under safeguards which ensure the competence, independence and impartiality of the judges, and replacing them by persons who have neither a judicial background nor specialized knowledge of the subject for which the Tribunal is created, and by persons now serving the executive who will continue to retain their lien and loyalty to the executive branch, and be amenable to the influence of executive superiors and their political masters.”

The doyens of the Madras Bar Association Shri Aravind P.Datar, Senior Advocate and Shri V.T.Gopalan, the then Additional Solicitor-General has rendered exceptional assistance to the Court in the matter before Madras High Court and the same is acknowledged by the Madras High Court in its judgment as follows:

“We place on record our appreciation to Mr.Arvind Datar, learned senior counsel of petitioner, whose research and cogent presentation has helped to clarify and bring out the significance of the issues involved, and to Mr.V.T.Gopalan, learned Additional Solicitor-General who, with his usual fairness presented the case for the respondent with great vigour, and also placed before the court all the relevant materials.”

Appeal to the Supreme Court:

The Judgment of the Madras High Court on the issue of constitution of National Company Law Tribunal and National Company Law Appellate Tribunal was appealed before the Supreme Court and the Supreme Court has now appears to have confirmed the judgment of the Madras High Court. The Madras High Court has never questioned the legislative competency in establishing National Company Law Tribunal, but, expressed its concern over the independence of the mechanism and its effectiveness. It’s really laudable.

Further process:

Now, the entire Companies Act, 1956 sought to be reorganized with some inclusions and deletions through Companies Bill, 2009. I don’t know as to how the Government has proceeded with the Companies Bill when an important issue on the Constitution of National Company Law Tribunal and National Company Law Appellate Tribunal was pending before the Apex Court. Now, the concerned ministry has to take note of the judgment of the Apex Court and should make needed changes to the proposed bill and then, the Companies Bill can be introduced in the Parliament and it needs to be passed. It will take some time, but, the entire issue can be quicken as the needed infrastructure for the establishment of National Company Law Tribunal and National Company Law Appellate Tribunal was already in place as I believe.

My opinion on the Tribunal:

Many feel that there is lot of difference between a Tribunal and the Court, but, I disagree with the notion. The Tribunal is also a Court intended to resolve the disputes, but, it is constituted under a special enactment and may follow different procedure as enshrined in the enactment.

A constitution Bench of the Supreme Court in the case of Associated Cement Companies Ltd. V. P.N.Sharma, AIR 1965SC1595, speaking throughour great justice Gajendragadkar, C.J., while holding that the appellate authority under the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952, is a Tribunal, observed:

“…Special matter and questions re entrusted to them for their decision and in that sense, they share with the courts one common characteristic; both the courts and the Tribunals are ‘constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions…’ They are both adjudicated bodies and they deal with and finally determine disputes between parties which are entrusted to the jurisdiction….As in the case of courts, so in the case of Tribunals, it is the State’s inherent judicial power which has been transferred and by virtue of the said power, it is the State’s inherent judicial function which hey discharge. Judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on considerations of policy, the state transfers its judicial functions and powers mainly to the courts established by  the Constitution; but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to Tribunals by entrusting tot hem the task of adjudicated upon special matters and disputes between parties. It is really not possible or even expedient to attempt to describe exhaustively the features which are common to the Tribunals and the courts, and features which are distinct and separate. The basis and the fundamental feature which is common to both the courts and the Tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign state.”

The observations of Justice Gajedragadkar were also referred in the Judgment of Madras High Court.

Thus, there is no much difference logically between the Court and the Tribunal and both are meant to resolve the disputes.

My apprehension:

I have the privilege of observing the proceedings of High Court in a Company matter and also the proceedings of Company Law Board. At present, the High Court discharges very complicated functions under Companies Act, 1956 like entertaining winding-up petitions and entertaining applications seeking sanction of the Court for a scheme of amalgamation etc. The Company Law Board also discharges complicated responsibilities under section 397/398 of the Companies Act, 1956 and other provisions.

There are many limitations and we know the functioning of the office of the Official Liquidator at present and we also aware of the proposed move to get the services of Advocates and Experts as liquidators. It’s a serious issue to deal with and requires serious consideration by the Government and also Courts. In my personal opinion, the High Court was able to discharge its functions under Companies Act, 1956 very well and the proceedings of Company Court were effective to a great extent. Instant orders were passed if the situation demands and most of the orders passed by the High Court while exercising Company Jurisdiction were obeyed and implemented by the parties concerned.

But, when it comes to the proceedings of the Company Law Board, many express their dissatisfaction that they are being unnecessarily troubled and many feel that they are not able to get justice though they could establish a clear case before the Board. It is also frequently seen as to the respect given to the orders of the Company Law Board. Again, the powers of the Company Law Board were limited by the express language used in the Act and also due to the ruling on its own competence and jurisdiction. These issues are taken note of by the Legislature and sought to be addressed in the proposed Companies Bill, 2009.

We have seen tremendous corporate growth in the recent past and with the technological revolution and its adoption in governance like MCA scheme, the incorporation and management of Companies have become so easy though there are complications in the Course.

We need to provide an effective and speedy redressel to the Corporate and they can not be waiting for months and years for a redressel. Handling a Company dispute is a complicated thing and requires lot of care, concentration and specialization. It is to be seen as to how the proposed National Company Law Tribunal and the National Company Law Appellate Tribunal functions in future.

Note: I have only given a brief of the issue and I am aware of the fact that a lot can be said on the issue.

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Because our family courts are not setup to protect the rights of litigants but a so-called ‘higher good’, it’s ripe for distributing injustice and persecution – mostly to fathers and their children. This article explains why.

Thomas Jefferson stated that trial by such a jury is the only anchor yet known to man to hold the state to the principles of the constitution so as not to leave the protection of the individual solely up to the government or judicial elites.

It’s through the jury that ‘the people’ participate in the judicial process and rein in unconstitutional or unreasonable laws and judgments of the state. Without the protection of a jury trial, tyranny will surely reign.

*Our most fundamental rights are in jeopardy in family court for doing no wrong:

At stake are your right to parent your child, to control and choose your income and profession, your right to maintain your professional and driver’s licenses, your right to have or maintain your passport and travel as you see fit. These rights are guaranteed by the constitution.

*What about the ‘best interest of the child’ – isn’t that ‘a greater good’?

Greater goods are part of dictatorships and tyrannies. The greatest goods of republics are peoples’ constitutional rights which includes the protection of ‘due process’. Supreme Court case laws states that the ‘best interest of the child’ resides in a ‘fit’ parent – not the state.

*How are fundamental rights at stake?

Because if the family court judge assigns you to be the noncustodial parent, you lose your parenting rights to your children (i.e. to support them directly, live with them, and direct their lives) and then you’re forced by the court to pay the mother whatever the judge says – amounts that will impoverish most fathers. If you don’t pay regularly and pay it all, you’ll go to jail without a trial.

*What do you have to do wrong to be assigned the noncustodial status?

Nothing! Fit parents – overwhelmingly fathers – have their constitutional rights denied by judges assigning them as noncustodial parents.

The judge – as representative of the state – invokes his ‘illegal’ right to take away constitutional rights of fit fathers for the ‘best interests’ of the children. Best interest determinations are only to be invoked when there are no fit parents.

*The family court setup prevents protection of father’s constitutional rights:

The family court doesn’t allow a trial with a jury. It only permits ‘bench’ trial which means that the judge is both judge and jury for you. So you’re denied the protection of the people from the legal elites and special interest groups that feed off the injustice that the family courts produce.

*Why doesn’t the family court protect a father’s constitutional rights?

Because when you eliminate the natural protections – like a jury – you leave judicial elites in power. More power means a more corruptible system. That’s human nature.

The family court and its affiliates have seized on a ‘greater good’ excuse such as ‘best interest of the children’ and ‘safety of women’ to forego constitutional law and protections for fathers.

*Special interest groups influence on the family court setup and actions:

A host of legal and court-assisting persons and organizations have a strong financial interest in keeping the family court set-up as it is. They together can be called the Divorce and Domestic Violence Industry (the DDVI).

The DDVI is made up of the judges, lawyers, GALs, mothers/women, probation/family service officers, psychiatrists, sociologists, visitation centers, battered women’s shelters, the abuse industry, women’s advocates, the state’s department of revenue (DOR), the federal government’s child support enforcement division…and more! Let’s consider where some of these entities find their financial interest in the family court setup.

The DDVI have interest in:

* Setting larger child support orders.

Both the court and DOR/CSE(child support enforcement (agency)) receive federal incentive payments. Court-DOR (Department of Revenue) agreements send some DOR money to the Court systems. County jails make money by more inmates – who are court-created deadbeat dads.

* Making abuse allegations more easily allowed.

Visitation centers and lawyers benefit by this as well as do Battered Women shelters and Batterers Groups. Incidentally, battering is relatively rare; accusations are very common.

* Aggravating parental exchanges and unequal allotment of rights – as the court imposes.

This makes lots of money and job security for lawyers, family services officers, psychologists, GALS, parenting class coordinators, women’s groups, and affiliated VAWA organizations who receive some $5 Billion over 5 years.

The DDVI, taken together, is a powerful lobby and participant in the rule-making process. They’re not about to favor any change – however fair – that will undermine their positions, benefits, or money and power they’ve accumulated.

On June 28, the Supreme Court ruled that the Second Amendment, which gives citizens the right to bear arms, is not limited by state and local laws. This means that states do not have the power to pass laws that put a limit on the amendment and an individual’s right to carry a weapon.

The controversial topic of gun control is not new to the United States. In fact, it is an issue the country has faced since the days of the Revolutionary War, Prohibition, and even the hippie era.

The following timeline highlights some important landmarks in the history of gun control that lead up to the recent Supreme Court case.

1775: As American try to gain independence, the British limit the amount of gun powder shipped to the colonies. Paul Revere is caught by British on their way to take U.S. weapons at an arsenal.

1822: Bliss v. Commonwealth solidifies peoples’ rights to bear arms to defend themselves. The right to bear arms is seen as an individual right.

1842: State v. Buzzard changes opinion and the right to bear arms is now seen as a political right, not an individual right. The case sends the country into decades of debate over whether the right to bear arms is an individual or collective right.

1856: The well known case of Dred Scott v. Sandford gives African Americans the right to bear arms.

1868: Amid worries that the Southern states were attempting to disarm former slaves, the 14th Amendment is enacted, stating that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

1934: Soon after the repeal of Prohibition and the violent gang related Saint Valentine’s Day massacre, the National Firearms Act is passed, requiring the registration of firearms.

1968: The Gun Control Act makes it illegal for anyone except licensed manufacturers, dealers, and importers to participate in interstate firearms transfers.

1974: The National Coalition to Ban Handguns is founded. It includes labor, religious, and nonprofit groups who support gun owner licensing, firearm registration, and the ban of privately-owned handguns (with a few exceptions) to fight gun-related crime.

1990: The National Coalition to Ban Handguns is renamed the Coalition to Stop Gun Violence.

1993: The Brady Act requires federal background checks to purchase guns in the United Sates.

1994: It becomes illegal to sell assault weapons to civilians, according to the Assault Weapons Ban.

2007: Background check requirements are added to by the NICS Improvement Amendments Act.

2008: The Supreme Court rules, in District of Columbia v. Heller, that the 2nd Amendment allows individuals to cary firearms in federal enclaves. The ruling does not make it clear whether the decision also applies to states.

2010: The Supreme Court rules that the 2nd Amendment is not limited by state and local laws and that individuals have the right to bear arms.

This summary is only the beginning. The history of American government and laws is very interesting, in depth, and pertinent to today’s rulings. Both the criminal justice and legal industries are full of exciting information and opportunities.

According to the Second Amendment of the Bill of Rights, Americans have the right to hold and bear arms for self-defense, an ability that aggressive Michigan criminal defense lawyers work hard to protect. However, in recent years handgun bans in various major cities in the United States have made that a difficult task. Fortunately, in a recent U.S. Supreme Court decision, the rights of

American citizens to keep and bear arms were upheld, extending to state and local levels. Since 1982, the Midwest city of Chicago has had some of the strictest handgun laws in the country. Residents were not allowed to own handguns for personal use, even in their homes.

Despite these harsh firearm laws, changes were set in motion in 2008. This was when the United States Supreme Court ruled that the Second Amendment assertion that the rights of individuals to possess a gun for self-defense applied to the nation’s capitol. However, since Washington D.C. is a federal city and not a state, it was not specified whether or not the ruling extended to other state or municipal laws.

Fortunately, early Monday morning the Supreme Court clarified themselves. In a 5-4 ruling, the court reasserted the constitutional protection of the Second Amendment to include state and municipal laws, ultimately having both national and local implications. According to gun-rights advocates, this victory for the Second Amendment could potentially allow constitutional appeals to restrictions on handguns be heard and granted nationwide.

As evidenced by the decision handed down from the Supreme Court, the legal process is a complex and ever-changing one. If you have been accused of criminal charges, it is important to find out all your options before proceeding with any type of defense. For this, it is in your best interest to contact knowledgeable Michigan criminal defense attorneys for assistance. Doing so immediately can provide superior legal representation designed to protect your individual rights and freedoms including the right to own handguns for personal use.

Supreme Court Case doesn’t Open the Floodgates to Discharging Student Loans in Bankruptcy.

The United States Supreme Court affirmed a lower court ruling that discharged Francisco J. Espinosa’s student loans in bankruptcy. The ruling was initially haled as a victory for borrowers and debtors. However, a closer look at the narrow ruling by the High Court establishes that debtors must establish that a student loan constitutes an undue hardship to discharge student loans through bankruptcy.

Mr. Espinosa had taken out four student loans to attend trade school. Four years later, he filed for Chapter 13 bankruptcy, and offered a repayment plan to the court, proposing that he repay the principal over five years, without interest. The bankruptcy judge approved his proposed repayment plan. The lender received notice of the proposed plan, but failed to file an objection. The court approved the plan. The lender failed to appeal from the court’s order within the time permitted by law. Mr. Espinosa repaid the principal on the loan pursuant to the repayment plan approved by the court, and the court discharged the outstanding interest. Years later, the lender attempted to reopen the bankruptcy court case and set aside the discharge of the interest.

On appeal, the lender argued that the bankruptcy court judge did not make a finding that the student loans constituted an undue hardship for Mr. Espinosa, as required by the Bankruptcy Code. In considering the case, Justice Clarence Thomas, writing for the Supreme Court specifically noted that the bankruptcy judge had erred in failing to make the required finding of undue hardship. However, because the lender had failed to timely object, and failed to file the proper appeal, the case had grown stale. “The bankruptcy court’s failure to find undue hardship before confirming Espinosa’s plan was a legal error,” Justice Thomas wrote in the majority opinion. “But the order remains enforceable and binding on United because United had notice of the error and failed to object or timely appeal.”

Noting that the Supreme Court specifically found that the bankruptcy judge had committed legal error probably precludes or severely limits the precedential value of the Espinosa case. In this case, the discharge came about because the lender slept on its right to object and timely appeal. If similarly situated lenders did not already have good reason to be vigilant for debtors seeking to discharge some or all of their student loan obligations in bankruptcy, they certainly will after the Espinosa decision.

Rather than being a great victory for debtors and borrowers, the Espinosa case actually reaffirmed that the Bankruptcy Code requires judges to make a determination of undue hardship. Failure to do so would constitute reversible error in other cases under different circumstances. Consequently, the Supreme Court’s decision does not open the floodgates to student loan discharges.

A World War I memorial will be allowed to stay in the Mojave Desert, and though covered since 2002 because it offended some people as a religious symbol is now unveiled again. It was the United States Supreme Court that allowed the Cross, on private land owned by the Veterans of Foreign Wars to stay after a protracted controversy. The Cross has stood for about 75 years in the desert. The question came to, Is the Cross religious symbol for Christians solely, or War Memorial for American dead?

In California and even San Francisco’s Bay Area the subject of a cross in a remote desert spot in the Mojave was a highly controversial matter. What about the cross on public land? Does this not violate separation of Church and State? was hotly asked.
 
A religious symbol cannot be on public land, said Frank Buono who is now retired from the Park Service. He brought the case to The Supreme Court over a ten year period with the help of The American Civil Liberties Union. According to The New York Times, “The white wooden cross, roughly 5 feet tall, stands atop Sunrise Rock in California’s San Bernardino County.” It is actually made of pipe today. The Supreme Court did not say whether this was a simple, dignified, and even popular War Memorial of little note but some popularity among the private individuals who visited it, and those who built it. The Court took on this almost humble case that to some appeared overblown.
 
A PDF of the Supreme Court decision is here.
 
The announcement of the Court’s result was made and reported in major newspapers April 28, 2010. Writing for the Supreme Court in Salazar v. Buono, Justice Anthony M. Kennedy said:
“The District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”
 
The Veterans of Foreign Wars agreed. One could easily surmise that’s the real issue, the real case from their vantage point. Many veterans agreed.
 
Gabriel Nelson, writing in his blog in The New York Times, said, “The Supreme Court ruled today that Congress and the Interior Department acted properly when they used a land transfer to solve a dispute over a cross on display in the federal Mojave National Preserve.”
 
There was no big hullaballoo, but a minimal statement with dissent by the Supreme Court. Gabriel Nelson put it well in his low key remark on how the Interior Department had acted properly. This writer has taken some snippets from other newspaper reports that demonstrate all are in accord in their reporting of the facts, and as the Supreme Court noted it was the facts that led them to their conclusions on the decision.
 
In its brief on behalf of Interior Secretary Ken Salazar, Solicitor General Elena Kagan said the cross did not imply government sponsorship. The transfer of land to the Veterans of Foreign Wars that required the installation of a plaque dissociating the statue from the federal government, she wrote, satisfied the problem of Church/State religion (Christian).
 
The Christian Post said in its report, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” wrote Justice Anthony Kennedy. “This cross,” he wrote, “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles.”
 
As a taste of the real argument in differences on the United States Supreme Court, it appears to this writer that Justice Anthony Kennedy caught the essence of the issue separating Justices. The Wall Street Journal noted in their report, Justice Stevens’s dissent argued that Congress wasn’t taking action to memorialize veterans, but rather using their memory to justify maintenance of a religious symbol. He noted that the Mojave cross little resembles the prominent and nonsectarian markers erected for those who served in World War II, Korea or Vietnam.
 
JESS BRAVIN Wall Street Journal writer pointed out in his article, The cross—estimated at five to seven feet tall—stands on Sunrise Rock in a remote patch of desert. Veterans, some of whom had moved to the region for health reasons, first erected a cross at the site in 1934 and it was often used for Easter services. The current version was assembled from painted metal pipes in 1998 by Henry Sandoz of Yucca Valley, Calif.
 
Though The Wall Street Journal called the decision one whereby the Cross was determined more war memorial than religious symbol, the grass roots battle in California called for many statements that: Yes, it was significantly and first a war memorial, but it was a religious statement for the war dead. There the Supreme Court did not necessarily agree, but it did not make sweeping decisions. Justice Kennedy wrote, Because of the “highly fact-specific nature” of the case, it is “unsuited for announcing categorical rules.”
 
Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Justice Stevens’s dissent. Justice Stephen Breyer dissented separately.
 
Images:  (1) Mojave Desert Cross, by Associated Press; (2) Mojave Desert Cross, by unknown.