Salazar v. Buono Oral Arguments

Yesterday, the oral arguments in Salazar v. Buono took place in the Supreme Court.

Some background to the case: In the 1930s, the Veterans of Foreign Wars put up a cross in the Mojave National Preserve in California as a war memorial. No other religious group is allowed to put up symbols in the area. Ten years ago, a former employee of the National Park Service, Frank Buono, sued, saying this was a violation of the establishment clause.

In the intervening decade, Congress and the courts have engaged in a legal tug of war. Congress passed measures forbidding removal of the cross, designating it as a national memorial and, finally, ordering the land under the cross to be transferred to private hands. Federal courts in California have insisted that the cross may not be displayed.

The Secular Student Alliance (along with several other members of the Secular Coalition for America) signed onto an Amicus Brief in this case (PDF). We support Mr. Buono.

The man who wrote that brief is Bob Ritter, Legal Coordinator of the Appignani Humanist Legal Center. He notes the importance of this case:

“A ruling either way is likely to have profound implications,” said Ritter. “A ruling in Buono’s favor will likely lead to the removal of some religious symbols on public property throughout America, while a ruling against Buono may close the court house doors to others who seek to challenge Establishment Clause violations.”

The New York Times is on our side as well:

On the merits, the appeals court was right that the cross must come down. By allowing a Christian cross, and not symbols of other faiths, on federal land, the government was favoring one religion over others. Also, Congress has designated the cross as a national memorial, which means that it continues to have official government endorsement.

It also sends a message that state and church are intertwined. A single cross does not, by itself, mean America has an established religion, but if the Supreme Court stops caring that the government is promoting a particular religion, we will be down the path toward having one.

Is the Supreme Court on our side?

It’s no surprise that Justice Antonin Scalia is not. He doesn’t even believe the cross is a symbol of Christianity. This was a portion of his exchange (PDF) with ACLU attorney Peter Eliasberg:

MR. ELIASBERG: … I think it would be very odd indeed for the VFW to feel that it was free to take down the cross and put up, for example, a statues of a soldier which would honor all of the people who fought for America in World War I, not just Christians, and say: Well, we were free to do that because even though there’s the sign that says, this cross is designated to honor all the —

JUSTICE SCALIA: The cross doesn’t honor non-Christians who fought in the war? Is that — is that —

MR. ELIASBERG: I believe that’s actually correct.

JUSTICE SCALIA: Where does it say that?

MR. ELIASBERG: It doesn’t say that, but 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, and I believe that’s why the Jewish war veterans —

JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. 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.

(Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE SCALIA: 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. I think that’s an outrageous conclusion.

MR. ELIASBERG: Well, my — the point of my — point here is to say that there is a reason the Jewish war veterans came in and said we don’t feel honored by this cross. This cross can’t honor us because it is a religious symbol of another religion.

Despite this transcript, the case may not even be decided on religious grounds. Rob Boston explains:

… In fact, there was surprisingly little talk about whether the presence of the cross in the middle of a federal preserve amounts to an unconstitutional “establishment” of religion.

Instead, several of the justices veered off into a discussion over a land swap Congress mandated in an effort to keep the cross up. In an effort to save the cross, Congress passed a special law declaring the cross a national memorial and transferring ownership of the land to a private group, the Veterans of Foreign Wars (VFW). There was a lot of talk about how that action affected a court injunction ordering that the cross be removed.

Thus, it’s possible the high court could decide this case on narrow technical grounds and perhaps even kick it back to a lower court.

There’s a chance all of this could be moot, too. Buono could lose the case on standing — similar to Michael Newdow’s “Under God” case — in which case the merits of why the cross should come down (or not) would not be addressed.

(Thanks to everyone for the link!)

  • Reginald Selkirk

    That exchange with Scalia was bizarro. The man’s believes are clearly at odds with reality. Will he take any steps to educate himself? Will he visit a Jewish or Muslim cemetery? Or even go onto Google images and find a few pictures of them? I did that the other day, and the only crosses I saw were swastikas spray painted onto some of the grave markers by vandals.

    It would be unfortunate if the tossed out the case on grounds of standing. That would be saying that constitutional limitations on church and state are utterly unenforceable because no one is allowed to no one is allowed to pursue corrective legal action.

  • http://primesequence.blogspot.com/ PrimeNumbers

    I’m sure that if a statue of a cross was defaced and burned and then had the fire put out with a pile of manure, it sure as hell would be a Christian symbol and thus the defacement be called a hate crime. Funny things double standards….

  • Matto the Hun

    JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

    WTF!?
    That statement alone should get his dumb ass booted from the bench. That isn’t an alternate point of view, it’s an alternate reality.

    I saw this story on the news last night. It annoyed me. As usual, the Christian couple that errected the cross were playing as if they were being persecuted.

    I’m astounded that I am still astounded by the lack of consideration this type of Christian has for the ideas and beliefs of others. Not only that but the arrogance, ignorance and dismissive attitude… so long as it’s their brand of religion.

    What I noticed in Hemant’s post was “No other religious group is allowed to put up symbols in the area.” This was not mentioned in the news story I saw. It’s a very important point. It goes right to the fact that this is all about taking advantage of deceased veterans, who can’t speak for themselves, in order to promote a religious view to the exclusion of any other belief (or non belief).

    I’m sure this wasn’t what these people were consciously doing by putting up the cross, but it doesn’t change the fact that that was the effect of what they did. This is where the arrogance, ignorance, and dismissiveness plays in. They have such a hard on for their belief that it does not occur to them to consider what other people think or feel, and to dismiss what other think and feel even when confronted with the opposition.

  • TXatheist

    I can’t believe Scalia can sit there and say the cross honors non-xian veterans like me. It infuriates me to be put under a symbol that is based on a lie/made up and yet believed by people. It’s deception that the cross represents to this vet.

  • http://notapottedplant.blogspot.com/ Transplanted Lawyer

    Something to think about — in Utah, crosses are used as roadside memorials to commemorate places where police officers are killed in the line of duty. But the cross is not a symbol of the Mormon sect of Christianity. Go into a Mormon church and you won’t see a cross anywhere. When asked why the crosses were used for roadside memorials, the response has been (and Federal judges have signed off on this) that the cross has become, over time, a generic symbol of death and memorial.

    I know, I thought it was B.S. when I first heard it, too. That’s why I mentioned the Mormon thing first – I’ve little doubt that Mormonism is the dominant flavor of religion in Utah and for them, the cross isn’t a religious symbol.

    So that seems to be what Scalia is aiming at. If you read the rest of the oral argument, you’ll see that he pretty strongly hints that he didn’t think there was an Establishment Clause violation in the first place, back before the government engineered a land swap with the VFW to keep the cross erect. Even Scalia was ready to concede that the government did the land swap with the obvious intent to keep the cross up. The real question at oral arguments turned out to be whether that violated an earlier injunction or not.

  • Matto the Hun

    Will he take any steps to educate himself? Will he visit a Jewish or Muslim cemetery? Or even go onto Google images and find a few pictures of them?

    Well GEEEEEZ Reginald, if he did that he might not be able to feel justified in shoving his beliefs down other people’s throats.

  • Spurs Fan

    When asked why the crosses were used for roadside memorials, the response has been (and Federal judges have signed off on this) that the cross has become, over time, a generic symbol of death and memorial.

    I would buy this argument if other religious symbols were allowed. They have not been. While this case may not be decided on the establishment clause, I think that, unlike other Supreme Court cases, this is an easy one: Government land that allows only one exclusive religious symbol and not another is a clear example of a government giving singular recognition to a specific religion and well on its way to “establishing” that religion as the national one. This one is easy. Let’s hope that Justice Kennedy and the four “liberal” judges see it that way.

  • Reginald Selkirk

    If the veterans are being honoured for their service to their country, why is a flag not the obvious choice, rather than a cross?

  • Valdyr

    Am I the only one who noticed that Scalia incorrectly identifies a “half moon and star” as the symbol of Islam? It’s a crescent moon, you dipshit. There’s no way such an important and powerful public figure should be ignorant of something so basic that even I know.

  • http://primesequence.blogspot.com/ PrimeNumbers

    Perhaps it would be best to knock the arms off the cross. Then it would be symbolic of the number “1″ indicating the 1 life we have and that these people used their 1 to benefit the many.

  • http://notapottedplant.blogspot.com/ Transplanted Lawyer

    For the record — I do not agree with the hypothesis that the cross is not a Christian symbol. I’m pointing out that there may be more to that argument than appears at face value (particularly to a non-Christian). The argument ought not to be dismissed as simple idiocy but instead should be addressed seriously. That is as far as I’m trying to go here, and no farther.

  • gski

    As egregious as Scalia’s opinion is, I find the maneuvers by the Congress to circumvent the constitution to be more of a threat.

  • Siamang

    It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

    Or, GEE… maybe what they do at Arlington:

    http://upload.wikimedia.org/wikipedia/commons/b/b6/ArlingtonCemetery.jpg

    Really, the cross is the most common symbol of the resting place of the dead??!? Much more so than the headstone shape?

    By the way, this isn’t the resting place of any dead. So why not a statue, or a flag, or an eternal flame, or a cannon, or a placard or a reflecting pool, or a spire, or anything else?

  • Reginald Selkirk

    This article is accompanied by a photo with the caption:

    The Rev. Patrick Mahoney of the Christian Defense Coalition carries a cross near the U.S. Supreme Court as justices hear arguments in the case of a World War I memorial in the Mojave preserve.

    Oh yeah, that convinces me that it’s about a secular memorial, not a religious issue.

  • sc0tt

    JUSTICE SCALIA: 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. I think that’s an outrageous conclusion.

    Perhaps the cross honors non-Christians, but it is absolutely a Christian manner of expressing that honor … and that’s the point.

    When I see photos of all the crosses at Normandy, with a few Stars of David… I think about people who may not have wanted such a symbol.

  • Farks

    Take a look at this 40’ tall atrocious cross.
    This monument is for the fallen soldiers of World War I who lived in Prince George’s County, MD.
    The link states that it is privately owned but it appears to be on public land.
    It is located just outside of Washington, D.C. and is at the crossroads of main intersections that lead into Washington D.C.
    I have wanted to complain about it for a long time but have been too ‘in the closet’ to do so. Anyone who wants to contest it, please do so.

    http://www.waymarking.com/waymarks/WMK1G

  • Richard Wade

    JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

    This so flimsy an argument I really don’t believe Scalia buys it himself. He’s hiding behind a pretended naivete, provinciality and chauvinism.

    Since he’s trying the straw man argument of suggesting a ridiculous conglomeration of symbols, let’s enjoy our own straw man arguments too:

    He implies that the cross is not exclusively symbolic of Christianity. He’s a Catholic. If the cross was missing from the church or cathedral he attends, is he saying he wouldn’t notice? Or if the space seemed empty, maybe if a giant dollar sign was up on the altar wall, he’d think all was well.

    He’s saying that the original stated intent gives the object its meaning, regardless of its form or of predominant connotation. So by his argument, even erecting a swastica would be fine if it was stated by the people putting it up that it was to honor American war dead.

    Let’s go back even further than the 1930′s and use the ORIGINAL meaning of the people who first used the cross. You know, the Romans? It meant “Defy us, and we will torture you to death.” Come to think of it, even in the 21st century, the cross hasn’t entirely lost that meaning.

    The predominant symbol of the dead is a scull and crossed bones. Nobody mistakes that one. Maybe we should erect a big death’s head out there in the desert to remind the idiots who drive their off road vehicles drunk to be careful.

    If the cross is sufficiently universal to symbolize and honor all the dead, then why do government cemeteries all over the country go to great expense to carve stars of David, crescents and stars, all sorts of religious symbols, even atoms for atheists, instead of just crosses? We could save a lot of money by discontinuing such custom-made headstones. Everybody gets a cross, period, because according to Scalia, it isn’t a religious symbol.

    Scalia is a disingenuous bullshitter, and he knows it.

  • Jeffrey

    So the cross is the predominant symbol of war and death? BIG surprise.

  • http://www.belovedspear.org Beloved Spear

    What is most peculiar here is having the Jewish ACLU lawyer articulate a fundamentally orthodox Christian position, and having conservative Catholic Scalia counter by decontenting the cross of any Christian significance.

    Muy, muy bizarro.


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