- The Washington Times - Thursday, October 8, 2009

The Supreme Court broke down along ideological lines Wednesday 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 long-standing 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, arguing that the cross should not be removed because its private ownership spares it First Amendment scrutiny.

American Civil Liberties 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 Wednesday’s 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 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 requirement 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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