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Justice Scalia's Cross

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There was a time in the United States, early in the Nineteenth Century, when some judges claimed that Christianity was the rock and foundation of American law. In 1811, for example, New York Chancellor James Kent upheld a blasphemy conviction on the ground that "we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity." Other religions, Kent added, were not protected against derision, because the United States was premised on Christianity and "not upon the doctrines or worship" of Judaism, Islam or Hinduism, which he dismissed as mere "imposters" and "superstitions."

At the time, men like John Adams and Thomas Jefferson sharply criticized this view. Jefferson wrote a celebrated attack on the claim that Christianity was part and parcel of the law of the land, concluding that it was a sheer fabrication. Over time, Adams and Jefferson carried the day, and the argument that American law is an extension of Christian doctrine faded from view.

Every so often, however, we hear echoes of this position. On several occasions, I have raised the question whether some of our current Supreme Court justices may have failed adequately to distinguish between their own personal religious views and their understanding of the Constitution. Justice Scalia, in particular, has taken umbrage at this suggestion. (See Justice Sotomayor, Justice Scalia and Our Six Catholic Justices (August 28, 2009).

In light of his sensitivity on this subject, I was surprised to read the following rather remarkable exchange between Justice Scalia and ACLU lawyer Peter J. Eliasberg during oral argument this week in the case of Salazar v. Buono, which deals with the constitutionality under the First Amendment's Establishment Clause of the display in the Mojave National Preserve of an eight-foot-high Christian cross, originally erected by the Veterans of Foreign Wars as a memorial to soldiers killed in military service.

This exchange followed a passing observation by Mr. Eliasberg to the effect that the cross honored Christians rather than "all of the people for fought for America in World War I."

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --

MR. ELIASBERG: I believe that's actually correct.

JUSTICE SCALIA: Where does it say that?

MR. ELIASBERG: It doesn't say that, 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, and I believe that's why the Jewish war veterans --

JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew. (Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE 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.

MR. ELIASBERG: Well, my -- the point of my -- point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross. This cross can't honor us because it is a religious symbol of another religion.

At this point, Chief Justice Roberts changed the subject, mercifully saving Justice Scalia from further embarrassment.

Mr. Eliasberg's point wasn't about whether the members of the VFW who erected the cross did or did not intend to honor the non-Christian dead. It was, rather, that the very presence of the cross changed the nature of the space into one belonging to Christians. This observation was hardly provocative or "outrageous." But Justice Scalia did not see it that way.

Of course, this was only an exchange during oral argument, rather than a judicial opinion. Justices at oral argument often explore novel ideas. They have even been known to be playful, sometimes teasing the advocates. But this was neither novel nor playful. Nor was it intellectually interesting. It was, rather, another example of Justice Scalia's apparent proclivity to see constitutional issues through the lens of his own religious understandings and beliefs.

No doubt, Justice Scalia will once again deny that he is influenced by anything other than the "original" intentions of the Framers and the Supreme Court's precedents. Let the record speak for itself.

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