WASHINGTON (CN) – In Supreme Court arguments Wednesday over a veterans’ memorial cross on public land, narrow arguments spilled over into a broad debate on the division between church and state. “The cross doesn’t honor non-Christians who fought in the war?” Justice Antonin Scalia exclaimed to a lawyer arguing that it did not. “Where does it say that?”
“I assume it is erected in honor of all of the war dead.” Scalia continued. “The cross is the most common symbol of the resting place of the dead.”
Peter Eliasberg, arguing that the cross violated the Constitution’s requirement of church-state separation, replied that it’s not written anywhere, but defended his argument by saying, “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,” he said to laughter.
Scalia appeared unconvinced, calling Eliasberg’s supposition that the Christian cross can only honor fallen Christians “an outrageous conclusion.”
Frank Buono, a Roman Catholic who worked with the National Park Service at the federal preserve in California where the cross was placed, complained because other displays were not permitted around the cross.
Indeed, the Park Service had rejected a request to erect a Buddhist shrine near the cross in 1999, but noted its intention of removing the cross.
Soon after, however, Congress forbid federal dollars go toward removing the cross.
When Buono sued, Congress designated the cross as a war memorial and- after a district court held that the cross could not be displayed- agreed to give the memorial property to a veterans’ organization in exchange for another parcel of land, but left open the option of reclaiming the land if the organization did not maintain the memorial.
The court of appeals stayed the district court’s injunction.
The question became whether the sale of the land was legal in light of the court’s injunction.
Buono said the government sold the land specifically to save the cross and that it had taken a number of steps to promote the religious symbol, suggesting that the sale was an act of favoritism.
The government argued that it was in compliance with the court’s decision when Congress swapped properties. It also maintained that the reasoning behind the agreement was largely secular, with the government wishing to preserve a war memorial.
The government also questioned Buono’s standing to bring the case, and it was expected to be a major factor during the oral arguments, but the justices immediately appeared to dismiss this argument, focusing instead on Congress’s sale of the land after the court ruling.
Justice Stephen Breyer didn’t appear to have any doubt about the illegality of the sale. “The injunction says the government is enjoined from permitting the display of the Latin cross, period,” he said to the solicitor general. “You are violating it.”
“I don’t know why we heard this issue,” he added.
But Scalia seemed to disagree with Souter. “It seems to me unreasonable to read the injunction to say the government shall not permit anybody to display a cross on that land no matter who owns the land,” he said. “I assume the injunctions meant you will not permit the cross to be displayed on this parcel of government land.”
Chief Justice John Roberts asked the solicitor general what the difference would be if the government only sold the square foot of property where the cross stands.
Solicitor General Kagan replied that such a sale would pass if it were not just for religious reasons, and if the cross were distinguishable from government property, like if signs were put up.
She said the actual sale satisfied the requirements.
Suddenly the justices were inquiring about the details of where the signs would be placed to distinguish the memorial from federal property
“This would be on government land, that sign? It wouldn’t be on the acre that you transferred,” Justice Sonia Sotomayor said. “I’m a little confused.”
Justice Ruth Bader Ginsburg joined in, expressing worry that the sign might not be visible enough. “This cross is high on a cliff in a desolate area. And if you had a little sign, you would have to climb up to it,” she said to laughter.
Roberts asked if this meant property owners with religious symbols would be singled out. “You are going to be putting up signs only for people putting up religious symbols,” he noted.
When Eliasberg stepped up to argue against the sale, he also faced tough questions.
Scalia appeared to disagree with Eliasberg’s claim that the sale was illegal. “I will stipulate that the government was trying to arrange it so that the cross could remain there,” Scalia said. “But that doesn’t mean that it was evading the injunction.”
Eliasberg replied that the government wasn’t simply giving up the property. He said the ability for reversion of the land allows the government to maintain some control to ensure the cross remains.
Ginsburg asked if the district court’s decision would be violated if the cross was removed from the land, then the land was sold and the private owners put the cross back up.
Eliasberg said that scenario would be legal.
But Justice John Paul Stevens remarked that the scenario Ginsburg proposed ignores the reversionary interest the government maintains over the property, where the Department of Interior would have to rebuild the old cross if it were destroyed.
Towards the end of the arguments, Roberts posed one last question. “I’m just kind of curious, why is this cross put up, you know, in the middle of nowhere?”
Even here, though, the lawyers were not in parallel. Eliasberg said that the cross was erected by a miner living in the area, and the solicitor general said a group of World War I veterans that had gone to the deserts to rebuild their lives were responsible.