WASHINGTON As the Supreme Court weighed a dispute over a religious symbol on public land today, Justice Antonin Scalia was having difficulty understanding how some people might feel excluded by a cross that was put up as a memorial to soldiers killed in World War I.
"It's erected as a war memorial. I assume it is erected in honor of all of the war dead," Scalia said of the cross that the Veterans of Foreign Wars built 75 years ago atop an outcropping in the Mojave National Preserve. "What would you have them erect? ... Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?"
Peter Eliasberg, the American Civil Liberties Union lawyer arguing the case, explained that the cross is the predominant symbol of Christianity and commonly used at Christian grave sites, not that the devoutly Catholic Scalia needed to be told that.
"I have been in Jewish cemeteries," Eliasberg continued. "There is never a cross on a tombstone of a Jew."
There was mild laughter in the packed courtroom, but not from Scalia.
"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," Scalia said, clearly irritated by the exchange.
The Court is considering in Salazar v. Buono whether the cross' presence on the land violates the First Amendment, despite Congress' decision to transfer the land on which the cross sits to private ownership.
Scalia made plain his view of the case, strongly suggesting that he sees no problem with the cross at all. By contrast, lower federal courts did find a constitutional violation and were not persuaded that the land transfer fixed the problem.
The cross has been covered with plywood for the past several years following the court rulings. Court papers describe the cross as being 5 feet to 8 feet tall.
Although Scalia's take on the dispute seemed clear, the case appeared to diminish in importance as the hourlong argument continued.
Rather than serve as a statement about the separation of church and state or even how people get past the courthouse door to challenge religious symbols on government land, the case could end up focused narrowly on the land transfer.
Even on that issue, the Court appeared divided between conservatives and liberals.
Several conservative justices seemed open to the Obama administration's argument that Congress' decision to transfer to private ownership the land on which the cross sits ends any government endorsement of the cross and takes care of the constitutional questions.
"Isn't that a sensible interpretation" of a court order prohibiting the cross' display on government property? Justice Samuel Alito asked.
The liberal justices, on the other hand, indicated that they agree with a federal appeals court that ruled that the land transfer was a sort of end-run around the First Amendment prohibition against government endorsement of religion.
Justice Anthony Kennedy, often the decisive vote in these cases, said nothing to tip his hand.
The 9th U.S. Circuit Court of Appeals in San Francisco has repeatedly ruled in Buono's favor. Congress has intervened on behalf of the cross, prohibiting the Park Service from spending money to remove the cross, designating it a national memorial and ultimately transferring the land to private ownership.
The appeals court invalidated the 2004 land transfer, saying that "carving out a tiny parcel of property in the midst of this vast preserve like a doughnut hole with the cross atop it will do nothing to minimize the impermissible governmental endorsement" of the religious symbol.
Veterans groups are on both sides of the case, with some worrying that other religious symbols that serve as war memorials could be threatened by a ruling against the Mojave cross.
Eliasberg, who represents the former National Park Service employee who sued over the cross, said their fears are misplaced. He said two prominent symbols in Arlington National Cemetery, the Argonne Cross Memorial and Canadian Cross of Sacrifice, are different.
Context matters, Eliasberg said, noting that the Veterans Administration offers a choice of 39 different emblems and beliefs on tombstones at Arlington.
Jewish and Muslim veterans, by contrast, object that the Mojave cross honors Christian veterans and excludes others.
Whatever the Court decides, it seems unlikely that the Mojave cross where Easter Sunrise services have been held for decades will have to come down.
Justice Ruth Bader Ginsburg indicated, and Eliasberg agreed, that even if the Court found problems with what Congress did, lawmakers probably could find a valid way to sell or give the land to veterans groups.
A decision is expected by spring.