Court Argues Meaning of Memorial Cross
WASHINGTON - Supreme Court arguments over a cross at a national preserve in California turned tense Wednesday, revealing the divisions among justices regarding religious symbols on public grounds.
One of the most heated exchanges came when an American Civil Liberties Union lawyer emphasized the power of the cross - erected to honor U.S. soldiers killed in World War I - as a symbol of Christianity. Justice Antonin Scalia challenged him on the implication that the cross was not honoring all the war dead.
"I have been to Jewish cemeteries," attorney Peter Eliasberg said. "There is never a cross on the tombstone of a Jew."
"I don't think you can jump from that to the conclusion that the only war dead the cross honors are the Christian war dead," Scalia shot back angrily. "I think that is an outrageous conclusion."
Though the legal question before the court Wednesday was narrow, it showcased familiar ideological divisions between conservatives such as Scalia and liberals such as Justice Ruth Bader Ginsburg.
The case involves a memorial that dates to 1934 when the Veterans of Foreign Wars (VFW) erected a cross at Sunrise Rock in San Bernardino County. The land is now part of the Mojave National Preserve and under the authority of the National Park Service.@
The cross structure at the Sunrise Rock outcropping has been replaced several times. The current cross, put up in 1998, is about 5 feet tall.
In 2001, Frank Buono, a former park service worker, sued the U.S. government, objecting because it allowed the cross but no other religious symbols at the site. Park officials had rejected a request for a Buddhist shrine near the cross.
Lower federal courts ruled the cross at the national preserve violated the required constitutional separation of church and state under the First Amendment. A judge ordered the cross taken down; it has been covered during the appeal.
The issue for the justices is not the lower-court decisions finding a constitutional violation, but whether Congress' subsequent attempt to save the cross was lawful. Congress designated the cross a national memorial and passed a law in 2004 calling for the transfer of the land where the cross sits.
Congress said the Interior Department must give the land to the VFW in exchange for a privately owned parcel elsewhere in the preserve. The U.S. Court of Appeals for the 9th Circuit blocked the 2004 law, saying it could not be enforced "without running afoul" of the court order forbidding the cross.
Appealing that decision, U.S. Solicitor General Elena Kagan called Congress' action a "sensible solution." She said Congress could simply have removed the cross, but that would have done away with "a memorial that for 75 years had commemorated America's fallen soldiers and had acquired deep meaning for the veterans in the community."
Justices John Paul Stevens, Stephen Breyer and Ginsburg seemed most skeptical of her argument.
Ginsburg elicited from Kagan that no other national memorial consists of a solitary cross.
Eliasberg, representing Buono, said he was not aware of any other time that Congress had passed a law to try to get around a court's decision that the federal government violated the Constitution.
Chief Justice John Roberts and Justices Scalia and Samuel Alito challenged Eliasberg most vigorously. They are among the most conservative members of bench.
Alito said the order against the cross arguably applied only when it was on public property, not on private land, as the 2004 act would place it.
"Isn't the sensible interpretation of the (court) injunction that it was prohibiting the government from permitting the display of the cross on government property," Alito asked, "and not on private property that happens to be within the Mojave National Preserve?"
Justice Anthony Kennedy, who is often a deciding vote in closely fought ideological cases, did not tip his hand Wednesday except to suggest in questions that he believed the legal question in Salazar v. Buono to be limited.