(The following is from the ACLU newsletter dated 10-16-2009)
The Court and the Cross
Last week, the Supreme Court heard argument in Salazar v. Buono, an establishment clause challenge to the federal government’s display of a Latin cross in the Mojave National Preserve.
The Court’s questions focused largely on esoteric procedural doctrine, and while it’s always risky to predict the outcome of a case based on an oral argument, it seems unlikely the Court will rule on the broader constitutional issues in the case -- namely, whether the plaintiff, a devout Catholic and former National Park Service employee, had standing to challenge the display of the cross; and whether, before it tried to transfer the cross to a private party, the government violated the First Amendment by displaying the sectarian symbol on federal land.
While the Supreme Court ultimately may pass on the loftier constitutional questions in this case, Wednesday’s argument had some dramatic moments. In the most heated exchange of the morning, Justice Antonin Scalia peppered Peter Eliasberg, the ACLU attorney arguing for the plaintiff, with questions about the significance of the cross. Justice Scalia bristled at Eliasberg’s suggestion that a World War I memorial featuring only a Christian cross sends a message of exclusion and religious favoritism, asking, "The cross doesn’t honor non-Christians who fought in the war?" After Eliasberg responded that the cross "is the predominant symbol of Christianity," Justice Scalia pushed back, suggesting that there was no constitutional problem with the display because "the cross is the most common symbol of the resting place of the dead." Eliasberg resisted, explaining that "the cross is the most common symbol of the resting place of Christians." "I have been in Jewish cemeteries," continued Eliasberg, the son of a Jewish World War II Navy veteran. "There is never a cross on a tombstone of a Jew."
The notion that a war memorial featuring a stand-alone Latin cross serves to honor only Christian war dead -- a notion Justice Scalia called "outrageous" -- was echoed in a series of amicus briefs filed in the case by various veterans groups.
However the Buono case is resolved, it will be difficult, if not impossible, to convince many non-Christian veterans that an isolated, freestanding cross expressly recognizes their service to the country. And Congress’s designation of the Mojave cross as one of only 49 national memorials (and the only one commemorating World War I), joining such iconic symbols as the Washington Monument and Mount Rushmore, only compounds the problem. As one retired Army brigadier general recently put it, "The cross is unquestionably a sectarian religious symbol that, as a congressionally designated national memorial to veterans, would convey the message that the military values the sacrifices of Christian war dead over those of service members belonging to other faiths."