Gov­ern­ment’s cross ‘so­lu­tion’ chal­lenged be­fore High Court

The Washington Times Weekly - - Politics - BY BEN CONERY

The Supreme Court broke down along ide­o­log­i­cal lines Oct. 7 in a con­tentious re­li­gion case, with con­ser­va­tive Jus­tice An­tonin Scalia call­ing “ou­tra­geous” the ar­gu­ments that a cross built as a war memo­rial only hon­ors Chris­tian sol­diers, while lib­eral jus­tices doubted the gov­ern­ment’s ef­fort to solve the is­sue by sell­ing the cross and the sur­round­ing land to pri­vate own­ers.

The case stems from a long­stand­ing con­tro­versy cen­ter­ing on a white metal cross in a re­mote part of fed­eral land in the Mo­jave Desert. The Vet­er­ans of For­eign Wars had built the first cross on the land in 1934 and have since re­placed it sev­eral times, with all ver­sions be­ing about 8 feet tall.

In 2001, Frank Buono, a re­tired Na­tional Park Ser­vice em­ployee, filed a law­suit ar­gu­ing the cross should be re­moved. A lower court and the 9th U.S. Cir­cuit Court of Ap­peals in Cal­i­for­nia agreed.

Congress, which de­clared the cross a na­tional memo­rial af­ter Mr. Buono filed his law­suit, had the cross cov­ered with ply­wood and trans­ferred own­er­ship of it to the VFW. Its in­ten­tion was to al­low the cross to re­main without vi­o­lat­ing the First Amend­ment’s pro­hi­bi­tion on gov­ern­ment es­tab­lish­ment of re­li­gion.

But the 9th Cir­cuit ruled against the gov­ern­ment a sec­ond time, de­cid­ing that the cross still rep­re­sented a vi­o­la­tion of the First Amend­ment’s es­tab­lish­ment clause be­cause the VFW was re­quired to main­tain a cross on the land. The Obama ad­min­is­tra­tion is ap­peal­ing that de­ci­sion to the Supreme Court, argu- ing that the cross should not be re­moved be­cause its pri­vate own­er­ship spares it First Amend­ment scru­tiny.

Amer­i­can Civil Liber ties Union lawyer Peter J. Elias­berg, who rep­re­sents Mr. Buono, dis­agreed with the fed­eral gov­ern­ment, ar­gu­ing that the trans­fer is merely an at­tempt to cir­cum­vent the lower courts’ rul­ings that the cross is an es­tab­lish­ment of re­li­gion.

Mr. Elias­berg’s crit­i­cisms of the memo­rial as hon­or­ing only Chris­tians drew the ire of Jus­tice Scalia, which led to the most tense ex­change of the oral ar­gu­ments.

“I have been in Jewish ceme­ter­ies, there is never a cross on a tomb­stone of a Jew,” Mr. Elias­berg said. “So it is the most com­mon sym­bol to honor Chris­tians.”

“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,” Jus­tice Scalia replied testily. “I think that’s an ou­tra­geous con­clu­sion.”

Jus­tice Scalia had as­serted that a cross is “the most com­mon sym­bol of the rest­ing place of the dead” and ques­tioned whether Mr. Elias­berg would pre­fer a war memo­rial that was “some con­glom­er­ate of a cross, a Star of David and a Mus­lim half moon and star.”

He also called it “un­rea­son­able” to con­cluded that “the gov­ern­ment shall not per­mit any­body to dis­play a cross on that land no mat­ter who owns the land.”

Jus­tice John Paul Stevens, on the other hand, ex­pressed skep­ti­cism about a re­quire­ment of the land trans­fer that

Jus­tice Scalia had as­serted that a cross is “the most com­mon sym­bol of the rest­ing place of the dead” and ques­tioned whether ACLU lawyer Peter J. Elias­berg would pre­fer a war memo­rial that was “some con­glom­er­ate of a cross, a Star of David and a Mus­lim half moon and star.”

stip­u­lates the war memo­rial must be pre­served.

“Say they aban­doned or de­stroyed it, the prop­erty would come back to the gov­ern­ment,” Jus­tice Stevens said. “If I read the des­ig­na­tion of the na­tional memo­rial statute cor­rectly, the Depart­ment of In­te­rior would have to re­build the old cross and put it up.”

So­lic­i­tor Gen­eral Elena Ka­gan dis­puted that, say­ing the only re- quire­ment of the trans­fer is that some type of war memo­rial re­main at the site.

“Do you think any­one thought there is the re­motest pos­si­bil­ity they would put up a dif­fer­ent memo­rial?” Jus­tice Stevens asked.

“I think it’s left to the VFW, and it’s en­tirely the VFW’s choice,” Ms. Ka­gan re­sponded. “So if to­mor­row or 10 years from now or 50 years from now, the VFW de­cides [. . . ] that a cross is an in­ap­pro­pri­ate war memo­rial, then they can take down that war memo­rial.”

Jus­tice Stevens re­mained skep­ti­cal, say­ing that at one point Congress au­tho­rized the use of $10,000 to re­place one of the crosses. He asked Ms. Ka­gan a sec­ond time whether she thought the cross was would ever be re­moved, and she re­peated that would be up to the VFW.

“That is not my ques­tion,” he replied tersely.

The Obama ad­min­is­tra­tion is also ar­gu­ing that case against the cross should be thrown out on a le­gal tech­ni­cal­ity that Mr. Buono should not have been al­lowed to bring a law­suit in the first place.

Mr. Buono, a Ro­man Catholic, has said that he does not ob­ject to the cross on re­li­gious grounds, but only be­cause he dis­agrees with the memo­rial in­cor­po­rat­ing only one re­li­gion.

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