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."
There's a lot more where this procedure stuff came from if you need to take a moment to track down a Jägermeister. But after just about everyone has weighed in on what this case isn't about, Justices Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor beat up a little on Kagan for failing to raise the standing objection in the courts below. To the extent Justice Anthony Kennedy talks at all this morning, he takes a whack at her on this front as well. Just when it seems the procedural fun couldn't possibly get any more rollicking, the chief justice cautions Kagan that "before your time expires, we would like to spend a couple of minutes on the merits."
Kagan contends that the government can solve its Establishment Clause problems by putting up warning signs explaining that the big cross stands on private land. But Ginsburg point out that "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." So Kagan assures the court that the government could just post a big sign warning the public about the cross with the little sign saying it's not owned by the government.
While the idea of the federal government racing around curing all of its constitutional ills with large signs that indicate it has cured its constitutional ills holds a certain charm, it doesn't appear to garner five votes this morning.
Justice Samuel Alito puts forth his theory of the case, which is that the doughnut-transfer was constitutional magic: "Isn't the sensible interpretation of the injunction that it was prohibiting the government from permitting the display of the cross on government property, and not on private property that happens to be within the Mojave National Preserve?"
Eliaberg argues that it was a sham transfer, particularly because under the terms of the transfer, if the VFW fails to maintain the cross, it reverts back to the government. Scalia admits as much: "I will concede that the obvious purpose of that was to avoid being in violation of the injunction. But that doesn't mean that it's invalid."
Earlier in the morning, Kagan had told Ginsburg that the VFW could certainly rip the cross down after the transfer. Chief Justice Roberts asks Eliasberg whether he agrees. Eliasberg says it would be hard for them to pull down the cross because the federal government has now required the VFW to put up a plaque that reads "This cross erected in honor of the dead of foreign wars." A few minutes later, Roberts has rifled through the record and read the precise quote from the plaque. Eliasberg tries to apologize for misstating it, saying he was just answering "in the context of the question."
"The context of my question," Chief Justice Roberts snaps back, "Was what does the plaque say?"
This leads to Scalia's assertion that it's outrageous for non-Christians to conclude that crosses don't honor their dead, too. And then, just before he sits down, Eliasberg, who's been trying to wrap up his argument for at least 10 minutes, gets one last zinger from the chief justice: "Counsel, this probably doesn't have anything to do with anything, but I'm just kind of curious, why is this cross put up in the middle of nowhere?"
Kagan's rebuttal, for its part, is a three-minute wrestle with Justice John Paul Stevens. He refuses to take seriously her assertion that the doughnut transfer has "completely dissociated the government from that memorial."
"How can you say it's completely dissociated?" sputters Stevens. "If they don't maintain the cross, it goes back to the government?" Then he presses Kagan on her contention that the VFW might take the cross down someday: "Do you think anyone thought there is the remotest possibility they would put up a different war memorial?"
Stevens is as shocked by the fiction that the VFW might tear down the white cross as Scalia is shocked by the fiction that the cross is not a religious symbol. But then that's the great thing about these religion cases: We believe what we need to believe.