WASHINGTON – The eight-year battle over the constitutionality of a 5-foot-tall,white,metal cross in the middle of a California desert reached the U.S. Supreme Court on Wednesday.
The case,Salazar v. Buono,asks whether the cross that honors World War I veterans violates the First Amendment's establishment clause because it was erected on federal land. While the case made its way through lower federal courts,Congress traded the plot of land under the cross to a local VFW chapter,meaning the cross now stands on private property.
Wednesday's arguments gave no clear indication which way the court would rule.
The justices probed whether the land transfer violated a district court's injunction that the cross violates the First Amendment.
Justice Antonin Scalia appeared to believe the transfer was valid.
“I will stipulate that the government was trying to arrange it so that the cross could remain there,” he said. “But that doesn't mean it was … evading the injunction.”
Justice Stephen Breyer took the opposite stance.
“I read the injunction. The injunction says the government is enjoined from permitting the display of the Latin cross,period,” Breyer said. “Once this law takes effect and you follow it,you are violating that injunction. You don't need nine proceedings to see that. You are violating it.”
Solicitor General Elena Kagan said she believes the government obeyed the injunction by covering the cross once the ruling said it couldn't be shown.
Kagan spent a good chunk of her time discussing whether Frank Buono,a Catholic and a retired National Park Service employee,has standing to challenge the cross.
Her arguments were shot down quickly by Chief Justice John Roberts and Justice Ruth Bader Ginsburg. The two said the question of standing was settled once the lower courts ruled. Roberts said the government should have brought the standing question to the court earlier.
“It would have been really an irresponsible action on our part to ask this court to address the standing issue after the first court of appeals judgment where … we knew that we were going to relitigate the question of the validity of the transfer,” Kagan said.
Peter Eliasberg,the California-based attorney representing Buono,argued that the government was violating the injunction by trading the land where the cross sits to the VFW,rather than opening the space up for sale to the highest bidder.
With the VFW trade,the cross will more than likely remain,he said.
Justices grilled him about what would happen to sites like Arlington National Cemetery if they rule that crosses on federal land are unconstitutional.
Eliasberg,whose father and grandfather are Jewish war veterans,said because the cemetery offers 39 different religious emblems for grave markers,all are constitutional.
The case began in 2001 when Buono filed a lawsuit challenging the cross,which was erected in 1934 on federally owned land in the Mojave National Preserve. He sued after a request to have another religious symbol placed in the preserve was denied.
In 2002,a district court ruled that the cross violated the establishment clause of the First Amendment. An appeals court agreed with the district court,and since then the cross has been covered by a wooden box.
Groups that filed friend-of-the-court briefs on either side of the case spoke outside the court both before and after the arguments. Faith and Action in the Nation's Capital,a Christian outreach group,supports leaving the cross in place.
The Rev. Rob Schenk,president of the group,the Rev. Pat Mahoney,of the Christian Defense League,and Father Jim Heyd,of the Respect Life office in Chicago,brought a replica of the famous cross to the Supreme Court steps and held a prayer service.
“If a memorial bears a religious symbol,then it should be allowed to stand because religious symbols are a part of our heritage,” Schenk said.
Eliasberg said after the arguments that,despite the cross's location in the “middle of nowhere,” as Roberts pointed out,the significance of its presence on federal land is what matters.
“In reality,about 100,000 people a year see this cross,” he said. “The government has the same obligations in a small town,national preserve or big city. … It's clear that the government is embracing this symbol.”
Purple Heart National Commander Jim Sims said the cross isn't merely a religious symbol for the veterans of World War I.
“It's for the veterans who fought,and they deserve it,” Sims said. “There's no religion in the foxhole.”