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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Unindifferent

All you - ACLU - you are too tolerant, irresponsible and you don't want to look ahead!
Thanks to ACLU loosing our countries and the hole CIVILIZED WORLD! It's horrible to destroy the sights of our past! It's our honorable history!
Thakns to ACLU фтв some other similar organizations we all will die in muslim terror! They already invandes us and just waiting...
Thanks ACLU!

A light in this...

Thank you for religious freedom of speech. Merry Christmas and John 3:16

Anonymous

Just think, if all those other religions would have just "turned their cheek" and refused to fight in the war because another religion was being wiped out, we would not even be discussing this memorial. Why the issue now?
To me people are people, I do not care what faith you are, just don't force it into my household.
If a cross is on a mountain or in a desert, cool. If the government was marching people to the cross or any other religious symbol then I would see your point. This is just a symbol, and their are many other I see every day and walk by, who cares?????
Just do not come into my house and tell me I need to change my beliefs so you will not be offended or I will throw your rear out. If I run across you celebrating your religion somewhere else and I do not agree, I will leave, not force my beliefs on you. Wake up people, respect and tolerance go hand in hand.

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