There's just one person at oral argument in Salazar v. Buono this morning who really wants to talk about whether a 5-foot cross on federal government land in the Mojave National Preserve violates the Constitution's Establishment Clause. But Justice Antonin Scalia really, really wants to talk about it. He looks particularly queasy when Peter Eliasberg—the ACLU lawyer whose client objects to crosses on government land—suggests partway through the morning that perhaps a less controversial World War I memorial might consist of "a statue of a soldier which would honor all of the people who fought for America in World War I and not just the Christians."
"The cross doesn't honor non-Christians who fought in the war?" Scalia asks, stunned.
"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," replies Eliasberg, whose father and grandfather are both Jewish war veterans.
"It's erected as a war memorial!" replies Scalia. "I assume it is erected in honor of all of the war dead. The cross is the most common symbol of … of … of the resting place of the dead."
Eliasberg dares to correct him: "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."
"I don't think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead," thunders Scalia. "I think that's an outrageous conclusion!"
Far less outrageous is the conclusion that religious symbols are not religious. But that's why these religion cases are always such fun. We believe what we need to believe.
The white cross, which sits on a desolate outcropping of rock known as Sunrise Rock, was erected in 1934 as a war memorial by the Veterans of Foreign Wars. The original has been replaced several times. Easter services have been held at the site for more than 70 years. But in 1999, the National Park Service denied a Buddhist's request to erect a shrine near the cross then declared its intention to take the cross down. Congress responded by enacting legislation in 2000 that prohibited government money from being used to remove the cross and by designating the cross in 2002 as the "White Cross World War I Memorial." After a district court permanently enjoined the government from displaying the cross that year, a cross-happy Congress passed yet more legislation, this time transferring the small parcel of land where the cross stood to the VFW. This transfer left what the 9th Circuit court of appeals later described as a little "doughnut hole of land with a cross in the midst of a vast federal preserve."
The 9th Circuit has interceded twice in this case. First, to uphold the 2002 injunction, then again in 2008 to prevent the government from transferring the land-doughnut as a way of curing the violation of the Establishment Clause, which bars the government from any "establishment of religion."
On paper, we are gathered here today to decide two issues: whether the guy who objected to the cross (a former park service official) had "standing" to bring this lawsuit and whether the Court of Appeals should have honored the government's land transfer. It's immediately clear that we are not going to get to the standing issue. The problem is that none of the justices can come to an agreement as to which of these issues, or any others, is properly before them. Thus most of the morning is lost to a protracted civil-procedure exam question. By comparison, the promised fight over standing requirements would have been like Mardi Gras.
As Scalia questions Solicitor General Elena Kagan (who is here defending a cross that probably mattered more to the Bush administration from whom she's inherited the case), we hear such scintillating queries as: "Was this simply an affirmation of the prior injunction? The Court of Appeals said the prior injunction had not been mooted by the—by the transfer of the land. So isn't really the issue whether that prior injunction, when the land did indeed belong to the government—whether that prior injunction was valid?"
Ping! Somewhere, a civil-procedure angel just earned his wings.
Justice Steven Breyer really just wants to identify the question he's supposed to be answering. He insists that the issue properly before the court is "whether the 9th Circuit is right in saying when you carry the statute into effect, you are violating this injunction, which I think no one could say you aren't. Now that's a very technical boring issue. I don't know why we heard this issue, but I don't see how we could reach any other issue in this case."