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Supreme Court Takes Up Church and State, but Just Barely

Caretakers of the cross in the Mojave Desert attend the Supreme Court's oral arguments over whether it violates the separation of church of and state.
Caretakers of the cross in the Mojave Desert attend the Supreme Court's oral arguments over whether it violates the separation of church of and state. (By Melina Mara -- The Washington Post)
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By Robert Barnes
Washington Post Staff Writer
Thursday, October 8, 2009

A lone cross built to honor the dead of World War I, bolted to a desert rock on public land, raises a host of complicated issues about which religious displays violate the Constitution's ban on government establishment of religion and who may challenge them.

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But the Supreme Court on Wednesday seemed disinclined to answer most of them.

The justices spent nearly half of the oral argument in the case deciding what they were deciding about the 6 1/2 -foot cross in the Mojave National Preserve and appeared to settle on a rather narrow question: whether Congress had the right idea for solving the problem by trying to transfer the land on which the cross sits to private ownership.

There was no obvious agreement on the answer.

Solicitor General Elena Kagan told the justices that lawmakers did the best they could in 2004 to preserve the memorial built by veterans more than 75 years ago and to abide by the decision of the U. S. Court of Appeals for the 9th Circuit that a cross on public land is unconstitutional.

"Congress had a choice," Kagan said. "And the choice was to take down that memorial, which meant an enormous amount to veterans in the community, or to completely dissociate the government from that memorial. And what Congress did was to completely dissociate the government from that memorial."

But Peter J. Eliasberg, representing the American Civil Liberties Union, said Congress, in fact, did the opposite: It designated the site a national memorial, putting it in the same rarified category as the Washington Monument and Mount Rushmore. It turned the land over to the Veterans of Foreign Wars, whose members first built the cross in the 1930s, rather than put it up for bid. And it said that if the site is ever not used as a memorial, the land reverts to the federal government. The appeals court disallowed the transfer.

The government "has made a significant number of affirmative steps to ensure that the cross remains up," Eliasberg said, in the face of the lower court's decision that it must come down.

The case was the first major opportunity for the court under Chief Justice John G. Roberts Jr. to delve into the meaning of the First Amendment command that "Congress shall make no law respecting an establishment of religion."

Previous court rulings on religious displays have been narrow and case-specific, producing a gauzy jurisprudence with few bright-line rules on who may challenge government actions or exactly what violates the Establishment Clause.

Justices Wednesday seemed uninterested in reviewing the lower court's decision, which found that a former park superintendent who objects to religious displays on public land is entitled to bring the lawsuit.

And only Justice Antonin Scalia seemed to want to decide the more basic question of whether the cross was unconstitutional in the first place. He had a testy exchange with Eliasberg about whether the symbol -- which the lawyer said "signifies that Jesus is the son of God and died to redeem mankind for our sins" -- could also double as a secular marker for the war dead of all faiths.

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