WASHINGTON — The long-running establishment-clause dispute over a Latin cross that has stood for 75 years as a war memorial on federal land in California’s Mojave Desert finally reached the Supreme Court yesterday. But by the end of the hourlong argument before the justices, it appeared to be less about the establishment clause and more an inquiry into the procedural oddities of the case, and about the latest effort by Congress to end the controversy.
When they weren’t bogged down by what Justice Stephen Breyer acknowledged was a “boring” procedural issue, justices focused not on the placement of the cross on public land in the first place, but rather on a law passed by Congress in 2004 that would transfer the land under and around the cross to a private party — thereby removing any hint of government endorsement of religion.
Justices seemed ready to accept the law as a solution, though some members of the Court voiced concern that even after the land passes into private hands, government might still have a measure of control over the memorial that would pose constitutional problems. For example, if the new owners, the local Veterans of Foreign Wars chapter, decided to take down the memorial, the land would revert to the government. But justices disagreed over whether that part of the law required that the cross be maintained or would allow for some less religious form of war memorial.
Even if the Court’s ruling in Salazar v. Buono is limited to approving the land transfer, such a decision could open another front in First Amendment litigation: whether government can make free-speech or establishment-clause violations go away by just “privatizing” aspects of the dispute.
Sidetracked as it was, the argument still managed to stir emotions over longstanding rifts on the Court about when religious expressions on public property cross the line into establishment-clause violations.
In the course of arguing that placement of the cross on public land was unconstitutional, American Civil Liberties Union lawyer Peter Eliasberg said the cross honored "just Christians." Justice Antonin Scalia, who is Catholic, was incredulous: "The cross doesn't honor non-Christians who fought in the war?" No, said Eliasberg, because the cross “is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins.”
Scalia came back at Eliasberg again: “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."
Eliasberg was ready with an answer. "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 reacted to that comment angrily. "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," he said.
In the audience, several people were offended by Scalia’s comment about the cross as “the most common symbol” for the dead, said lawyer Jeffrey Pasek, who authored a brief against the constitutionality of the cross for the Jewish Social Policy Action Network. "A lot of people were surprised at the insensitivity of that comment," Pasek said.
But for much of the argument, the justices grappled with procedural issues in the case. Breyer raised 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. 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 dropped out of the case.
Breyer said 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.
Before the argument, it appeared to many that the case could be decided on the issue of 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 question of the law passed by Congress to sell the land around the cross, the justices seemed reassured when Kagan said that under the statute, it is "entirely" up to the VFW whether to maintain or take down the cross. Justice John Paul Stevens differed 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.
Kagan also said that if the law was allowed to take effect, the government would be willing to post signs on the only road near the cross to make clear that the monument was on private land.
Eliasberg, arguing for Buono, asserted that Congress "has made a number of significant steps to ensure that the cross remains up," so that even if the land sale took effect, the cross would violate the First Amendment.
Eliasberg also countered the assertions by supporters of the cross that if it was 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.