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At High Court, Cross Words Over Mojave Memorial
The National Law Journal
October 08, 2009
The U.S. Supreme Court on Wednesday grappled with a major establishment clause dispute over a Latin cross that has stood for more than 70 years as a war memorial on federal land in the Mojave Desert of California. Justices seemed to be seeking a narrow way to decide the case, often getting bogged down in procedural matters, but there were also moments of drama.
At one point late in the arguments in Salazar v. Buono, American Civil Liberties Union lawyer Peter Eliasberg, in challenging the placement of the cross on public land, suggested the cross honored "just Christians." Justice Antonin Scalia, who is Catholic, angrily interjected, "The cross doesn't honor non-Christians who fought in the war?" He added, "I assume it is erected in honor of all of the war dead. The cross is the most common symbol of the resting place of the dead."
To which Eliasberg replied, "The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."
Scalia's quick retort was, "I don't think you can leap from that to the conclusion that the only war dead that cross honors are the Christian war dead. I think that's an outrageous conclusion."
One lawyer in the audience said that when Scalia asserted that the cross was the most common symbol of a resting place, "You could audibly hear people breathing in." Jeffrey Pasek of Cozen O'Connor, who authored a brief against the constitutionality of the cross for the Jewish Social Policy Action Network, added, "A lot of people were surprised at the insensitivity of that comment."
But for much of the hour, spectators were treated to a reprise of a civil procedure class.
Led by Justice Stephen Breyer, the Court got mired in questions about the finality and appealability of injunctions like the one issued at early stages of the case enjoining the government from permitting the display of the cross. "Procedurally, this is a little boring," Breyer acknowledged, but he dove right in. By the end of the discussion, it appeared that one of the big issues in the case -- whether retired National Park Service employee Frank Buono had standing to challenge the cross -- had evaporated.
Breyer pointed out that the original injunction had ruled in favor of Buono's standing, a determination the government did not appeal and could not now challenge. Solicitor General Elena Kagan said it would have been "an irresponsible action" for the government to mount a major appeal on standing at that early stage, but the justices appeared unconvinced.
Many commentators had thought beforehand that the case could be decided on standing, without reaching the church-state issue, but that path now seems unlikely. Even before Breyer offered his procedural analysis, it had seemed the standing issue was being downplayed. Kagan did not mention standing as she began her argument, instead plunging into the establishment clause question -- even though standing is a threshold question that would ordinarily be discussed first.
On the establishment clause issue, the Court seemed split. Several justices seemed ready to accept as constitutional a law passed by Congress aimed at curing the constitutional problem by selling the land under and around the cross to the local Veterans of Foreign Wars chapter. An earlier version of the cross was first erected by the VFW on the site in 1934.
The justices seemed reassured when Kagan, who was defending the law, said that under the statute, it is "entirely" up to the VFW whether to maintain or take down the cross. Justice John Paul Stevens vigorously disagreed with her on that point, however, asserting that the law contemplated the preservation of what had been designated as a national memorial -- namely, the cross that stands there now.
Eliasberg, who represented Buono, also asserted that Congress "has made a number of significant steps to ensure that the cross remains up," and that even if the land sale takes effect, the cross would violate the First Amendment.
Eliasberg sought to knock down assertions by supporters of the cross that if it is ordered dismantled, then all crosses on public lands -- including crosses on graves at national cemeteries -- would be threatened. He said veterans' families are offered the choice of erecting 39 different emblems on tombstones in such cemeteries. "In that context, I don't think anyone would perceive that the government was favoring one particular religion," Eliasberg said.
