The Court and the Cross

(Originally posted on ACSBlog.)

The Supreme Court heard argument last Wednesday in Salazar v. Buono, an Establishment Clause challenge to the federal government's display of a Latin cross in the Mojave National Preserve. The Court's questions focused largely on esoteric procedural doctrine, and while it's always risky to predict the outcome of a case based on oral argument, it seems unlikely the Court will rule on the broader constitutional issues in the case - namely, whether the plaintiff, a devout Catholic and former National Park Service employee, had standing to challenge the display of the cross; and whether, before it tried to transfer the cross to a private party, the government violated the First Amendment by displaying the sectarian symbol on federal land. (The lower courts decided those issues in favor of the plaintiff in the first round of the case, and the Bush Administration chose not to seek Supreme Court review at the time. As a result, the Court now appears disinclined to revisit those rulings.)

But while the Supreme Court ultimately may pass on the loftier constitutional questions in Buono, Wednesday's argument did have some dramatic moments. In the most heated exchange of the morning, Justice Antonin Scalia peppered Peter Eliasberg, the ACLU attorney arguing for the plaintiff, with questions about the significance of the cross. Justice Scalia bristled at Eliasberg's suggestion that a World War I memorial featuring only a Christian cross sends a message of exclusion and religious favoritism, asking, "The cross doesn't honor non-Christians who fought in the war?" After Eliasberg responded that the cross "is the predominant symbol of Christianity," Justice Scalia pushed back, suggesting that there was no constitutional problem with the display because "the cross is the most common symbol of the resting place of the dead." Eliasberg resisted, explaining that "the cross is the most common symbol of the resting place of Christians." "I have been in Jewish cemeteries," continued Eliasberg, the son of a Jewish World War II Navy veteran. "There is never a cross on a tombstone of a Jew."

The notion that a war memorial featuring a stand-alone Latin cross serves to honor only Christian war dead - a notion Justice Scalia called "outrageous" - was echoed in a series of amicus briefs filed in the case by various veterans groups, including the Jewish War Veterans, the American Muslim Armed Forces and Veterans Affairs Council, the Muslim American Veterans Association, and a group of high-ranking retired military officers. However the Buono case is resolved, it will be difficult, if not impossible, to convince many non-Christian veterans that an isolated, freestanding cross expressly recognizes their service to the country. And Congress's designation of the Mojave cross as one of only 49 national memorials (and the only one commemorating World War I), joining such iconic symbols as the Washington Monument and Mount Rushmore, only compounds the problem. As one retired Army brigadier general recently put it, "The cross is unquestionably a sectarian religious symbol that, as a congressionally designated national memorial to veterans, would convey the message that the military values the sacrifices of Christian war dead over those of service members belonging to other faiths."

The U.S. military has always been religiously diverse, from the Revolutionary War, through World War I (when, for example, an estimated 250,000 Jews served in the U.S. Army), to the present (11 percent of current active members of the military say they belong to a non-Christian faith, and an additional 21 percent are atheists or report no religion). But unlike individual headstones for fallen American soldiers - which appropriately reflect the varied, personal religious preferences of those brave men and women, - the Mojave cross claims to speak for all veterans. Surely, there are other government-sponsored, national symbols that can serve that purpose admirably (the American flag comes to mind), without dividing the country along religious lines.

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Kelton Phillips

Our founding fathers would be in total dismay to witness the path that this great country is headed down. This very subject is and was at the very core of the fundamental truths that birthed our nation in the first place. Why is that had the individual in question chose to use a star of David or someother religous symbol no one would have even took notice. This nation was founded on christian principles, the proof lyes within every historic document detailing our existance, and while I fully believe that all who choose to reside here in the "United States of America" should be allowed the opportunity of "Life , Liberty and the pursuit of Happiness" that doesn't mean that their beliefs should be allowed to take precidents over the original beliefs this nation was founded on. WE ARE A CHRISTIAN NATION, like or not, if that doesn't set well with you, you are free to go as easily as you came back to the substandard conditions you came from. I'm sick and tired of all the retoric, quit wasting my tax dollars.

Joe the Barber

Let's not go halfway, the US Congress is still using it's postage free right to send out Christmas cards and Christmas Day (Dec 25th) is still on the Federal Holiday list. Why???? No prayer in schools or sporting events. Restrictions on Christmas decorations????? Why???? Complete the job or put the Ten Commandments back on the walls!!!!

gabriel

so tell me since when did the cross start offending people and their right to freedom of religion. just because some people dont like the cross there im sorry but this country has a basis of religion that started it so fuck off

Waste of time &...

When will the ACLU realize that this nation, the greatest one in the world at present, was historically & factually founded on Judeo-Christian principles? What is wrong with "Thou shalt not kill"? "Honor they father and mother". . .? I think the ACLU has over stepped its original and good intent to protect the helpless but its current agenda is obvious and that is to destroy the nation from within by the decay of morals and twisting of truth.
Leave the cross alone - its in a remote area, no one sees it, why do you care or should I say hate so much. Just another stepping stone to set a precedent? May all those who support this work with their donations come to their senses & realize all the vulgarities and injustices it stands for. No love for their country here.

Stephen Clark

The Roman (Christian) cross in the Mojave National Preserve definitely shows governmental favoritism toward the Christian servicemen who sacrificed their lives over the non-Christian servicemen who sacrificed their lives.
I think that the reason Supreme Court Justice Scalia excuses the presence of the cross is because he is a Roman Catholic Christian. This case and other religious cases demonstrate his biased nature.

Liberal Hater

5 to 4 the cross will stay. Roberts, Scalia, Thomas, Alito and Kennedy will defeat Ginsburg, Stevens, Breyer and Sotomayer. No matter what they rule on, whether that be standing or congressional procedure or the Constitutionality of the establishment clause I am convinced the cross will stay because the vote will hinge on Kennedy and Kennedy in the ten commandment cases said that the ten commandments can stay. Also, in the Mt. Soledad ross case he put a stay on tearing that cross down.

David Fillmore

shame shame shame on the ACLU concerning its relentless judicial moves to remove crosses around the country . . . now I understand the ACLU is trying to remove crosses from military cemetaries!! shame shame shame . . . you will lose and also lose respect for all your worthy causes.

John

I like the American flag idea. And, let's keep the Christian Cross, that's what this country was founded for. We live in a christian Nation.

Will

#6 - the assertions made in the e-mail you reference are all false. In this Blog of Rights post, we set the record straight: http://blog.aclu.org/2009/10/13/the-aclu-and-religion-dont-believe-everything-you-read-on-the-internet/

Stephen

The only reason ACLU goes after Christian crosses is because ACLU is pro-Jewish. This also why ACLU never ever goes after Congress and the President when they defy the Constitution's Separation of Church and State by favoring the establishment of a particular religion when it comes to supporting the Jewish religion's nationalistic enterprise, Israel. ACLU is too Jewish biased to be objective about religious issues.

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