Arguing over a cross in the desert

Yesterday’s Supreme Court arguments in Salazar v. Buono featured an ACLU lawyer and Supreme Court Justice Antonin Scalia tangling over the meaning of a cross to honor war dead. Here’s the brief:

Supreme Court Justice Antonin Scalia said it was an "outrageous conclusion" that a war memorial featuring a cross only honors Christian war dead.

The statement came during arguments Wednesday in the case of Salazar v. Buono, which deals with the constitutionality of a 6 1/2-foot cross sitting on what originally was public land in California’s Mojave National Preserve.

The memorial was constructed 75 years ago to honor World War I victims, but 10 years ago it was challenged by a National Park Service employee who thought it violated the Constitution’s ban on government establishment of religion.

Congress passed legislation in 2004 declaring  the site a national memorial. The legislation transferred the ownership of the land on which the memorial sits to the Veterans of Foreign Wars in exchange for five privately owned acres in the preserve.

Scalia was responding to a statement from American Civil Liberties Union lawyer Peter Eliasberg that such a memorial "signifies that Jesus is the son of God and died to redeem mankind for our sins," and thus could not be a secular memorial.

Scalia, according to media reports, responded that the cross was the "common symbol of the resting place of the dead" and asked whether the lawyer would instead want erected "some conglomerate of a cross, a Star of David and, you know, a Muslim half-moon and star?"

Eliasberg responded, "I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."

The justice retorted, "I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion."

Legal observers said the court may end up deciding the case on the narrower issue of whether Congress acted legally in transferring ownership of the land to a private entity rather than the constitutionality of the cross sitting on public land.

The Washington Post’s Dana Milbank also was there, and argues that the case doesn’t have nearly the import that interest groups suggest it does — but there are benefits for talking about it in such stark terms:

For the interest groups on both sides, a good fight can bring in money and members — even if that means making the "fight" appear to be something larger than it actually should be. The "injury" claimed by the ACLU was rather a stretch: that Buono, a former National Park Service official, would "tend to avoid" the area when he returns to visit Mojave. So, too, was it necessary to inflate the menace posed by the pipe cross, which stands 100 yards off of a dusty road at an elevation of about 20 feet. Congress, in one of its legislative actions to defend the cross, even gave the place the status of a national war memorial, as if it were another Gettysburg.

The other side, too, had to pretend that taking down the cross would jeopardize veterans and God-fearing folk everywhere. "We pray that those who laid down their lives will be properly memorialized with a cross so tenderly placed in the lonely desert," the Rev. Rob Schenck of the National Clergy Council preached outside the Supreme Court. Next to him, the Rev. Patrick Mahoney of the Christian Defense Coalition held an eight-foot-high cross made from plywood. "We use this every year," he explained.

And he chronicles what he calls the "apocalyptic" statements by both sides on the high court’s steps after the hearing:

What’s next?" demanded Barry Lynn of Americans United for Separation of Church and State. "Will we sell a few steps of the Supreme Court to some group that wants to put up a Jesus-in-the-manger scene year-round?"

On the contrary, declared Kelly Shackelford, chief counsel of the Liberty Legal Institute. "If you have to tear down a cross in the middle of 1.6 million acres of desert, then what do you do with the 24-foot-tall Cross of Sacrifice in Arlington Memorial Cemetery?" he asked. "Anything that has religious imagery now has to come down?"

Both scenarios are, of course, equally absurd. But fear and loathing fill interest-group treasuries. It is a cross they must bear.

The Washington Post editorializes that Congress’ solution to the problem was a bad call:

In our view, the original question — did the presence of the cross on federal law run foul of the First Amendment — is not so clear. The government should not be in the business of favoring one religion over another, and we would object to a move today to create permanent displays of crosses or any other religious symbols on public lands. Yet the Mojave cross, erected as it was to honor the war dead, seems in context more a historical marker of a bygone era than a government embrace of a particular faith.

But if the cross doesn’t belong on federal land, the swap proposed by the government won’t cure the problem. Transfer to the VFW clearly favors one group by shutting out others from a chance to own the property. It favors the cross, too, because the terms of the deal call for the government to reclaim the parcel if the VFW fails to maintain it as a public memorial. The swap seems more of a ruse to avert a federal court order than a principled solution.