Scalia Defends Cross On Public Land, Claims It Represents Everyone

WASHINGTON — As the Supreme Court weighed a dispute over a religious symbol on public land Wednesday, Justice Antonin Scalia was having difficulty understanding how some people might feel excluded by a cross that was put up as a memorial to soldiers killed in World War I.

"It's erected as a war memorial. I assume it is erected in honor of all of the war dead," Scalia said of the cross that the Veterans of Foreign Wars built 75 years ago atop an outcropping in the Mojave National Preserve. "What would you have them erect?...Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?"

Peter Eliasberg, the American Civil Liberties Union lawyer arguing the case, explained that the cross is the predominant symbol of Christianity and commonly used at Christian grave sites, not that the devoutly Catholic Scalia needed to be told that.

"I have been in Jewish cemeteries," Eliasberg continued. "There is never a cross on a tombstone of a Jew."

There was mild laughter in the packed courtroom, but not from Scalia.

"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," Scalia said, clearly irritated by the exchange.

The court is considering whether the cross' presence on the land violates the Constitution, despite Congress' decision to transfer the land on which the cross sits to private ownership.

Scalia made plain his view of the case, strongly suggesting that he sees no problem with the cross at all. By contrast, lower federal courts did find a constitutional violation and were not persuaded that the land transfer fixed the problem.

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The cross has been covered with plywood for the past several years following the court rulings. Court papers describe the cross as being 5 feet to 8 feet tall.

Although Scalia's take on the dispute seemed clear, the case appeared to diminish in importance as the hourlong argument continued.

Rather than serve as a statement about the separation of church and state or even how people get past the courthouse door to challenge religious symbols on government land, the case could end up focused narrowly on the land transfer.

Even on that issue, the court appeared divided between conservatives and liberals.

Several conservative justices seemed open to the Obama administration's argument that Congress' decision to transfer to private ownership the land on which the cross sits ends any government endorsement of the cross and takes care of the constitutional questions.

"Isn't that a sensible interpretation" of a court order prohibiting the cross' display on government property? Justice Samuel Alito asked.

The liberal justices, on the other hand, indicated that they agree with a federal appeals court that ruled that the land transfer was a sort of end-run around the First Amendment prohibition against government endorsement of religion.

Justice Anthony Kennedy, often the decisive vote in these cases, said nothing to tip his hand.

Veterans groups are on both sides of the case, with some worrying that other religious symbols that serve as war memorials could be threatened by a ruling against the Mojave cross.

Eliasberg, who represents the former National Park Service employee who sued over the cross, said their fears are misplaced. He said two prominent symbols in Arlington National Cemetery, the Argonne Cross Memorial and Canadian Cross of Sacrifice, are different.

Context matters, Eliasberg said, noting that the Veterans Administration offers a choice of 39 different emblems and beliefs on tombstones at Arlington.

Jewish and Muslim veterans, by contrast, object that the Mojave cross honors Christian veterans and excludes others.

Whatever the court decides, it seems unlikely that the Mojave cross – where Easter Sunrise services have been held for decades – would have to come down.

Justice Ruth Bader Ginsburg indicated, and Eliasberg agreed, that even if the court finds problems with what Congress did, lawmakers probably could find a valid way to sell or give the land to veterans groups.

A decision is expected by spring.

The case is Salazar v. Buono, 08-472.

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On the Net:

The Supreme Court: http://www.supremecourtus.gov

Comments

[MTGradwell]

For a possibly related story, see http://en.wikipedia.org/wiki/Buddhas_of_Bamyan

[cmc6614]

Therefore, the cross will be removed and the site will be marked with a plaque until such time as a comprehensive symbol can be agreed upon to honor the dead at memorial sites in public places. Further, if no such symbol can be agreed upon the plaque will remain in place as a reminder to honor our dead”. I hardly think anyone can find an informational plaque offensive.

I think that this may be a fair solution, but not entirely practical. After all, what shall we do about all the other monuments erected in public places when they become offensive to someone? Shall we remove all of them? Hopefully not.

Personally I believe we need to leave these types of symbols in place as a reminder of where our country has been and the growth we have achieved as a nation. I think that we should create new symbols that represent all of the people and take into account all of the many views of those that represent our nation today and in the future. I just don’t think we need to obliterate our past in order to do that.

[cmc6614]

I do not think that Justice Antonin Scalia’s somewhat sarcastic statement, "What would you have them erect?...Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?", is helping matters any. In fact, I’m afraid he may add fuel to the fire if he keeps spouting such ignorance.

I don't think that the government should dispose of the land to avoid the ramifications of any court action. I think that would in some way dismiss the concerns of the people to be heard and recognized by their government. In essence sweeping them under the carpet and saying, "What's done is done, it's a petty issue and we want no more to do with it. We have bigger fish to fry." I think the government needs to acknowledge the growth of our country and let the people know that it recognizes every citizen along with all that each of them represent. Now, I know that that sounds like an impossible task, but I think in this instance it is doable.

I feel that in this instance perhaps the government, our government, could state that, “At the time it was felt that the cross was a comprehensive symbol for honoring the dead, but now the government recognizes that this is no longer the case.

continued

[cmc6614]

I believe that at the time this particular cross was erected that our country was predominantly Christian in one form or another. I could be wrong, but I don't think that an issue was raised at the time because many of the minorities that make up our nation today were small in numbers then, and somewhat uncertain of how much they should stir the waters, even though they may have represented a fair portion of those that died during the war while proving their loyalty to our belief system.

However, today our nation is home to people from widely numerous ethnic, religious and national backgrounds from the world over, and over time they have deeply rooted themselves in the politics that protect the freedoms of us all. The people of America have learned to speak up and make their voices heard. Those "groups" of people who at one time may not have felt completely secure of their place in our society are now sure where they stand and, perhaps, are letting be known what has bothered them all along.

continued

[irkulyen]

After disclosing that he would not have supported Brown vs. Board of Education, Scalia's opinions mean pretty much nothing.

[Josh Tavlin]

i guess the religious Scalia won't mind if his tombstone features the star of david, as opposed to the cross.

[Skepticat]

Justice Scalia doesn't quite get it. A specific symbol of one religion does NOT really represent everyone in a pluralistic society, although it may have been so intended at one time. I'm a great believer in separation of church and state - and in freedom from religion. However an 8 foot monument put up by veterans 75 years ago out in the Mojave desert just isn't much of a threat to anybody's freedom. I see nothing to be gained by fighting over it other than giving fundementalist ideologues far more sympathy than they deserve and providing ammo for right wing talk shows.
The real enemy are the people actively working to impose a theocracy - and not a monument from a bygone era.

[bushgirlsgone]

.

Erect whatever mythological symbols you want on your own land, not on Uncle Sam’s.

Uncle Sam could beat up Jesus anyday.

[voxpop4]

Interesting comments. I am Jewish and I have no problem with crosses. I have visited American soldiers Cemetaries all over the globe. Of course most of the graves have crosses although many "stars of david are present too. When it comes to this "cross" in particular..it honors our brave fallen. Surpprisingly, I see even some "Christians" have problems with it. We are not a "Christian Nation", but we are in a nation that has a majority of Christians.. I recognize that and if the Fire dept " where I live wants to have a "nativity" scene out front..I have no problem with that either. As long as we keep our "freedom of relgion" constitutional rights. I guess this debate is much more than "Much ado about Nothing".

[kizzie]

Good for you! I agree totally. I can't get over how people make mountains out of molehills, acting as if their own view is the right view. Where has common sense gone?
I see no problem with the placement of the cross put there many years ago before we had this nonsensical bickering over religion. Back then, most soldiers were of Christian mindset and prayed to their God to protect and care for them--the same basic idealogy of all religions.
If someone is truly openminded and not indoctrinized to narrow-minded opinions, I can't see why this would be an issue. I see things every day that I don't approve of, but I don't raise a hissy-fit and demand it stop because i don't agree.
If I were walking through the Mojave desert and saw the cross, i would simply think--"How interesting", and read what the memorial stood for, and think what a nice thing it stood for. I am not religious, but I am spiritual. I was Catholic when young, but couldn't buy into their rituals and rules when I grew older.
My view of faith now means"Do no harm to ohters and let be what others believe." We all have the right to our faith and symbols. Mine is the peace sign. How anyone can take offense of a cross is beyond me. Put all symbols on that hill so no-one is offended if that's what it takes, but don't take it down.

[CrittersRTasty]

Thank You. I was beginning to fear that there were no reasonable people left in this country.

[JackFertig]

I'm a Muslim, not a Christian so the cross does not represent me. Well, that's a no-brainer.

But having been a Catholic for much of my life I know the inside of at least one Catholic mind. What I find more intriguing is that Scalia's assertion seems to ignore and dilute the meaning of the Cross for Christians. He is denying its specificity and power as a religious symbol of the resurrection of Jesus Christ, its centrality to the Christian faith being (pardon the unavoidable pun) crucial. He is in effect re-casting this essential Christian symbol as a bland one-size-fits-all kind of marker for the dead, disconnected from any promise of Christian resurrection.

Surely a lot of Christians are smugly congratulating themselves in this odd bit of cultural assertion, but I should think the more intelligent ones would be upset that their most important symbol is being ripped from its meaning and focus. The resurrection is promised not to everyone but to the devoted and faithful and, as Jesus said, to those who don't make a big show of their faith. Saying that the Cross represents everyone seems to say that the resurrection is not a precious reward for the few who truly, humbly and quietly followed God's path, but something we will all share in, like it or not. Scalia's remarks not only flout our consitutional separation of state, but the most basic Christian article of faith.

[OLDDOG65]

I have a message for Mr. Scalia, that cross doesn't represent me. I fought for this country, not a religion, and none of the other people on the Wall in DC or those who fought and died for this counry in WWI or WWII or Korea fought for a religion. They fought for the country. So if you want to put up a monument in memory of those who died in a War for this country, put up a Star or Flag of the United States or a Bald Eagle, but not a religious symbol. And if you have to use religious symbols, let us not forget that many people died in these Wars that are not represented by a cross, but a Star of David or a Muslim Crescent. Are they going to erect those on that sight so they can honor all the men, regardless of religous affiliation, who died in WWI? Unless that is the plan, the memorial is a farce. End of story.

[pottedferne]

very well said Olddog..thank you for your service to our country...it is very appreciated....

[bobbybo]

This is why the big test for Supreme Court Justices should be their ability to grasp the law, not their political views or where they stand on Roe v Wade. Scalia, Roberts, Alito are idealogs, disguised in black robes. A Justice is impartial, wise, informed.

[pottedferne]

after all the hoopla about Sotomayer being biased....this dood takes the grand prize judgement for his beliefs.....

[JudgeMoonbox]

Imagine that the symbol in question was an elephant. Would Scalia expect people to assume that war dead who were Democrats are included? I can see veterans organizations defending exclusionary symbols, for instance: paratroopers, Native Americans, or plane crash victims, as long as they did so honestly. If they actually believed that the cross symbolized non-Christians as well as Christians, they are well over the line between Ecumenical Feelgoodism--the minimizing away the differences between religions--into sheer arrogance.

I think that Scalia showed a lack of Judicial Temperament. He should step down and let President Obama name someone who isn't outraged by statements of the obvious.

[Bettysdad]

What's always interesting in these cases, is that the plaintiffs ALWAYS say it's really not that big a deal, and y'all making a lot out of this.

Then why do they want to put the cross up, if it's so trivial?

[StillAmused]

As it turns out, Scalia isn't too bright.

If you're brought up in a Christian environment, you ASSUME the crucifix is a universal symbol.

Then, you grow up.