"You Always Wonder, Is There Some Question I Haven't Thought Of?"

(Originally posted on the ACLU of Southern California web site. Also posted to Daily Kos.)

Peter Eliasberg will appear before the U.S. Supreme Court on Wednesday to argue Salazar v. Buono, an important First Amendment case concerning a cross erected by private citizens in California’s Mojave National Preserve. Here are some of his thoughts on the eve of arguing the case before the nation’s highest court.

This is my first case in front of the U.S. Supreme Court. I’ve argued in front of the California Supreme Court, and also seven or eight times before the 9th Circuit. But you sense that this is an even higher level, so yes, I’m nervous.

There are a lot of different issues in this case, and it’s very hard to know what the justices will focus on. Lower courts have already decided that the placement of the cross on federal property violates the Establishment Clause of the First Amendment, and the government did not ask the Court to review that decision. One of the issues to be considered by the justices now is whether that violation is meaningfully eradicated by the government’s proposal to transfer ownership of the small patch of land on which the cross stands to a local veteran’s group, even though the cross will remain designated a national memorial.

It’s utterly clear that the government’s proposal does not live up to its obligation not to favor any particular religion. The cross is unquestionably a sectarian religious symbol, signifying the divinity of Jesus. As a congressionally designated national memorial to World War I veterans – one of only 49 national memorials in the country – this cross would convey the message that the military values the sacrifices of Christian war dead over those of service members from other faith traditions. This would be true even if the property were to be transferred to private owners.

The cross’s message would not be, as the memorial’s defenders claim, one of commemoration for all war dead and veterans, or for all veterans of World War I. Thousands of Jews, Muslims, Buddhists and members of other faiths who have served their country with honor do not regard the cross as a “universal symbol.” That’s one reason the military allows soldiers and their families to choose which religious symbol to put on headstones in military cemeteries – a policy the ACLU staunchly supports, by the way.

Another issue the justices will consider is whether the plaintiff in the case, Frank Buono, a military veteran, former assistant superintendent of Mojave National Preserve and someone who visits the area of the preserve near the cross regularly, has standing to sue. And there’s also an issue over whether the question of standing has even been properly presented to the court, since the government did not ask the Supreme Court to review the lower courts’ ruling that Mr. Buono had standing when those decisions became final in 2004.

Clearly, Mr. Buono is directly affected. And anyone who is directly affected by government favoritism of one religion can and should be able to sue, if our constitutional freedom of religion is to mean anything. Otherwise, a Jewish student “offended” by school-sponsored Christian prayers, for example, would have no legal recourse.

I’ve done a tremendous amount of preparatory work for this hearing in recent months. You always wonder, “Is there some question I haven’t thought of?” But by and large, I feel ready. I’ve done two moot courts at Harvard, one at NYU and one at Georgetown University. The moots are indispensable to preparation. They are a chance to test your arguments and how well you know them, but also to see what people who are smart think of them.

I drink decaf coffee, so tomorrow before I head to the court, I’ll have a cup or two. There’s really nothing you can do at the last minute before a major case like this except get yourself as grounded and relaxed as you can be, and try to keep your head clear.

Add a comment (14)
Read the Terms of Use

Arlene M.

While I am a member of the ACLU, as with most people, I don't share all of their views nor the battles which they choose to fight. When it comes to the separation of church and state I think that our founding fathers had something different in mind, rather than the causes that seem prevalent today. I say that based upon the fact that the European countries from which they fled had for the most part, been ruled by one religion or another. Hence, no religious freedom, but a particular religion was the foundation upon which Kings and Queens ruled and governed. It is this separation of church and state that our founding fathers were looking for; not the complete eradication of any mention of God. If you look at some of Thomas Jefferson's quotes, in fact some of those contained at his Memorial in Washington,D.C. you might find some agreement. Perhaps, instead of finding it necessary to take down the cross, you could, in the name of religious freedom, add the other religious symbols so that all are represented. Thomas Jefferson's quote that I believe is most relevant here is on Panel 3 of his memorial and begins, "God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed the conviction that these liberties are the gift of God..."


Im totally amazed anyone would be offended by a cross on small piece of land. Im not any faith, and a piece of wood or metal certainly doesn't offend me.
ACLU is always talking of tolerance, yet ACLU fights for intolerance.


Jesus is the only one who died for our sins. Budda did not, Allah did not, Mohamed did not.

Everyone sees a cross and knows it refers to Jesus's sacrifice for us. YES THIS WILL OFFEND PEOPLE. Jesus offened many people. Since when is 'offending someone' a crime? I am OFFENDED when you want to take the cross down.

Carl from Las Vegas

Mr. Peter Eliasberg is a Jewish/Nazi-egotist that needs to get down from his racial highhorse and and find a lot of humbleness, gratitude and compassion. The cross was set up to honor and remember all who died and sacrificed in WWI. It was done in a MAJORITY Christian land to honor all. Get over yourself Pete! Your starting to sound like 1930s Nazi's pushing arian rights. This is America and the Jewish population is only about 3.2percent. If we have to represent everyone who died in WWI then then what do you propose to do for Czechs and Scots and Germans and Turks and Palestians and everyone else...or are you proposing we only do it for Jews? You are an obvious racist and can't see beyond your own racial heritage-just like the Nazis. Try just being human and when you see the cross, just be grateful for what it really symbolizes-ALL WHO SACRIFED IN WWI! The nation has far more pressing issues to deal with right now like millions of homeless, jobless families with starving children. Petee, get your nose out of 'Mien Campf' and get your feet into doing for others! Jews, Christians,... stop being so petty!

Pat Russell

Why do you exists? I have never ever heard of anything that you have done that was truly good for my civil rights. Pointless no good tying up of government courts and resources. Why can't you just go away? I'll take care of my rights.

Pat Russell

I small piece of steel in the middle of nowhere the happens to form a cross and you got your panties in a wad? All this while kids in the inner cities are killing kids... You the A.C.L.U. worthless. Let me say this kindly as I can. GO away. Get a job that matters.

American Citizen

You are so full of hot air, unbelievable. This cross does not reflect any particular sectarian belief as far as I'm concerned. It represents all thos who have lost their lives defending this country. What a ridiculous case to be fought. Why don't you folks ever favor the majority as opposed to the minority? If this man is offended by this cross, then drive down another road. The guy doesn't even live in the state of California. What a waste of time. Sure seems like you love offending the majority of American people in favor of the ridiculous who would object to something as loving as a memorial to all those who died so this jerk can be offended by a simple white cross. You seem to have your values completely mixed up.

edward hubright

to whom it may concern, iam writing this concerning the cross in the mojave desert 1)the cross was erected by private citizens on land that was not a part of a federal park over 70 years ago.private citizens have taken care of this site for many years.when it was erected i dont think they were trying to choice 1 religion over another. 2)my great uncle fought and died in ww1 and my great grandfather supported that cross till the day he died.he was not a very religious man but he he did care about that cross. 3)so if you take this cross down off federal land,what next,how about the cross at arlington cemetary.it is a cross on federal land and by your diffention it should have to come down too. 4)instead of suing and fighting this in court why not slow down,think,and find a place to move the cross to like a church who will take the cross and display it for those who want to visit it. 5)i am not a very religious man myself but i do believe that people have the right to honor their dead anyway way they chose too.i think that this seperation of church and state is getting out of control on too many levels. 6)in my house we talk about religion and military history and patritism with my youngest daughter on a regular basis.we try and teach her to respect people no matter what their religious beliefs are but stand side by side in any effort to protect our country.please remember that it takes all kinds to make the world go around but that freedom isnt free but it is worth fighting for no matter what your religious beliefs are. leave the cross alone and where it is and lets fight for something important. thank you edward hubright

lesa Jobe

To whom it may concern: I am writing in concern that with the American movement, that "we shouldn"t offend anyone. As a Christain and I think soon to be a minority , if not already.
What about Christain rights to put up a cross as a symbol of their religion. If it offends your religion, as you have the same rights as I do. When something I dislike offends me I don't have to look at it regardless of what piece of land it may be on.


I believe that the cross is for everyone in the entire world. Why? Because Jesus died for everyone in the entire world, whether they believe in Him or not.


Sign Up for Breaking News