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Cross Case Raises Questions, and Maybe Money

By Dana Milbank
Thursday, October 8, 2009

Question: If a cross rises in the desert and no one knows about it, does it make a sound?

Answer: Only in Washington.

In 1934, veterans erected a cross on a rock in a remote part of the Mojave Desert on what is now national park land -- and for the next 65 years, pretty much nobody but the odd rattlesnake noticed. But over the past decade, this 6 1/2 -foot-high cross, made from four-inch white metal pipe, has become the subject of no fewer than four acts of Congress, two district court rulings, three appellate court actions -- and Wednesday, arguments before the nine justices of the Supreme Court.

Why did the Supremes take a case about this bit of Christian iconography in, as Chief Justice John Roberts put it, "the middle of nowhere"? Maybe it was to give Justice Antonin Scalia a chance to squabble with the ACLU.

"The cross doesn't honor non-Christians who fought in the war?" the Catholic justice asked with incredulity.

"I believe that's actually correct," said Peter Eliasberg of the American Civil Liberties Union, the son and grandson of Jewish war veterans.

"Where does it say that?" Scalia demanded to know.

"It doesn't say that," Eliasberg admitted, "but a 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."

This news enraged Scalia. "The cross is the most common symbol of the resting place of the dead," he declared. "What would you have them erect . . . some conglomerate of a cross, a Star of David, and you know, a Muslim half-moon and star?"

"The cross is the most common symbol of the resting place of Christians," Eliasberg corrected. "I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."

The audience laughed. "I think that's an outrageous conclusion," Scalia hissed.

Outrageous or otherwise, it was unnecessary for the high court to reach any conclusions. As Justice Ruth Bader Ginsburg pointed out -- and as representatives of both sides agreed -- the whole First Amendment problem could be avoided if the government merely took down the cross, transferred the land to the Veterans of Foreign Wars and let the veterans put the cross back up on newly private land.

But avoiding the problem wasn't the goal: When it comes to church-and-state cases, both sides are looking for a fight, as the list of organizations filing amicus briefs made apparent. Siding with the veterans (and, awkwardly, the Obama administration) were conservative groups such as the Eagle Forum, the Thomas More Law Center and the Christian Legal Society. Siding with the ACLU and its client, Frank Buono, were liberal groups such as the American Humanist Association, Americans United for Separation of Church and State, and the Freedom From Religion Foundation.

For the interest groups on both sides, a good fight can bring in money and members -- even if that means making the "fight" appear to be something larger than it actually should be. The "injury" claimed by the ACLU was rather a stretch: that Buono, a former National Park Service official, would "tend to avoid" the area when he returns to visit Mojave. So, too, was it necessary to inflate the menace posed by the pipe cross, which stands 100 yards off of a dusty road at an elevation of about 20 feet. Congress, in one of its legislative actions to defend the cross, even gave the place the status of a national war memorial, as if it were another Gettysburg.

The other side, too, had to pretend that taking down the cross would jeopardize veterans and God-fearing folk everywhere. "We pray that those who laid down their lives will be properly memorialized with a cross so tenderly placed in the lonely desert," the Rev. Rob Schenck of the National Clergy Council preached outside the Supreme Court. Next to him, the Rev. Patrick Mahoney of the Christian Defense Coalition held an eight-foot-high cross made from plywood. "We use this every year," he explained.

Inside the courtroom, the justices seemed determined to decide the case on what Justice Stephen Breyer called "a very technical, boring issue" of whether a lower court's injunction was violated. The argument became so technical that, toward the end of the government's case, Roberts interrupted to say that "before your time expires, we would like to spend a couple of minutes on the merits."

But moments after the argument ended, groups on both sides went out to the microphones to discuss the case in apocalyptic terms.

"What's next?" demanded Barry Lynn of Americans United for Separation of Church and State. "Will we sell a few steps of the Supreme Court to some group that wants to put up a Jesus-in-the-manger scene year-round?"

On the contrary, declared Kelly Shackelford, chief counsel of the Liberty Legal Institute. "If you have to tear down a cross in the middle of 1.6 million acres of desert, then what do you do with the 24-foot-tall Cross of Sacrifice in Arlington Memorial Cemetery?" he asked. "Anything that has religious imagery now has to come down?"

Both scenarios are, of course, equally absurd. But fear and loathing fill interest-group treasuries. It is a cross they must bear.

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