A Cross – The Great Divide: Justices Seem Split On Calif. Religious Symbol Case

It seems to me that Congress was clearly trying to find a way to keep this cross on federal land.

I spent the morning at the Supreme Court attending oral arguments in Salazar v. Buono – a case focusing on a cross on display in the Mojave National Preserve in California.

I'm not going to pretend I understand all of the ins and outs of this complex case because I'm not a lawyer. I rely on AU's legal team to do that. But I did garner a few impressions from the argument.

First of all, it's quite possible this case will not be settled on traditional church-state grounds. 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 was also a lot of talk about whether the land transfer is legitimate. U.S. Solicitor General Elena Kagan, who argued the case on behalf of the federal government, insisted that if the land transfer is upheld, the federal government would no longer have anything to do with the land the cross sits on and would not be in violation of a court injunction.

I don't buy it – and some justices seemed skeptical as well. Justice Ruth Bader Ginsberg pointed out the VFW is required to keep some type of war memorial on the property, which means the government still has a stake in what happens on this land.

It seems to me that Congress was clearly trying to find a way to keep this cross on federal land. Its motivation was purely religious, and that alone should be enough to declare the act a violation of church-state separation.

Some justices did ask on-point questions about separation of church and state. Justice John Paul Stevens wanted to know if there is any other national memorial that consists solely of a religious symbol. (There is not.)

But on the other hand, Justice Antonin Scalia stated more than once that a cross is not necessarily a religious symbol and it can represent all veterans. He even called the claim that the cross does not represent all veterans "an outrageous conclusion."

Peter J. Eliasberg, the American Civil Liberties Union attorney who argued the case, had a nifty reply to that. "I've been in Jewish cemeteries," Elias said. "There is never a cross in a Jewish cemetery."

Americans United Executive Director Barry W. Lynn also rebuked Scalia.

During a press conference on the portico of the Supreme Court after the argument, Lynn said, "The cross in Mojave Reserve has no historic significance, it has no secular significance; it is a powerful symbol of the dominant religion in this country and, as such, it has no business being in the Mojave Preserve.

"There is not one reasonable person," he continued, "who drives on those roads and sees this cross on one acre who doesn't think that that acre is controlled -- like the 1.6 million other acres -- by the federal government for people of all faiths, no faiths and people of all ideological persuasions."

At the end of the hour, both attorneys had been thoroughly grilled, with every justice asking at least one question (expect Clarence Thomas, of course). Justice Sonia Sotomayor, the newest member of the court, was an active participant, and while it's always dangerous to read too much into questions from the bench, I'm hopeful she's leaning our way.

I caught up with several other AU staffers outside the court after the argument. Americans United did a friend-of-the-court brief in the case, and Barry was taking questions from the media. It was interesting to listen in on the different conversations going on as various observers tried to guess what the court may do with this case.

[caption id="attachment_2188" align="aligncenter" width="500" caption="Barry Lynn, center, speaking at the Supreme Court. At left, NPR's Nina Totenberg, and at right, NBC's Pete Williams. (Photo by Maria Matveeva)"][/caption]

I overheard one especially interesting tidbit: Religious Right groups have been insisting that if the ACLU wins this case, it will open the door to attacks on grave sites at places like Arlington National Cemetery. It's an offensive argument and one anchored in fear-mongering.

Groups like the ACLU and Americans United support the right of families to choose any religious symbol for a private grave site. Americans United even went to court on behalf of the family of a Wiccan solider to defend this right.

Asked about this issue, attorney Kelly Shackelford of the Liberty Legal Institute, a group that represents veterans in this case, finally admitted that it's not likely to happen.

So what's next?

The Supreme Court will issue its ruling sometime before the end of June, so stay tuned.

P.S.: Barry Lynn will be discussing the case on CNN's "Lou Dobbs Tonight" this evening at 7 p.m. Eastern time. Tune in if you can.