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Court Wades Shallowly Into Church and State
Argument Over Cross on Public Land Deals Minimally With the Broader Issue

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.

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.

Scalia said the cross was the "common symbol of the resting place of the dead," and asked, "What would you have them erect . . . some conglomerate of a cross, a Star of David, and you know, a Muslim half-moon and star?"

Eliasberg drew laughter from the crowded courtroom when he responded, "I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."

Scalia did not laugh. "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," he said.

On the other side of the ideological divide, Justice Ruth Bader Ginsburg drew from Kagan that the Mojave cross is the only one of the fewer than 50 national memorials that consists of a lone religious symbol. And Justice John Paul Stevens sharply questioned whether Congress has really disassociated itself from the cross by saying the VFW can do whatever it wishes with the site.

"Do you think anyone thought there is the remotest possibility they would put up a different memorial?" Stevens asked Kagan.

Kagan's difficulty in pleasing the divided court was apparent when she offered to Ginsburg that the government could put up signs along the lonely highway that leads to the cross to indicate that the display was erected by the VFW and has nothing to do with the government.

But Roberts questioned whether that would single out people who use their land for religious purposes. "Under your hypothetical, it would be only religious property that would have these special warning signs," he said.

Justice Anthony M. Kennedy, who often casts the deciding vote, said little during the argument.

But one notable change in the court is the replacement of retired Justice Sandra Day O'Connor by Justice Samuel A. Alito Jr.

O'Connor over the years became more protective of the church-state separation. Alito yesterday indicated that he thought Congress had solved the problem.

"Isn't the sensible interpretation" of the lower court's ruling that "it was prohibiting the government from permitting the display of the cross on government property, and not on private property that happens to be within the Mojave National Preserve?" Alito asked Eliasberg.

Veterans groups and others have worried that a ruling that the cross is unconstitutional would endanger other memorials that employ religious imagery, such as the Argonne Cross at Arlington National Cemetery and the Memorial Peace Cross in Bladensburg.

But the justices seemed disinclined to answer that basic question, and Eliasberg said those memorials fit into a context that should not be challenged.

"In Arlington, there is a cross that is surrounded by a sea of tombstones with symbols of the faith of all of the different service members," Eliasberg said. "In that context, I don't think anyone would perceive that the government was favoring one particular religion."

The case is Salazar v. Buono.

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