Scalia’s Cross

The Establishment Clause does not prohibit religious memorials

By William S. Jeffrey

Last month the Supreme Court seemed poised to wade back into the murky waters surrounding the constitutionality of placing religious symbols on public property in search of some elusive clarity. The case is Salazar v. Buono, and it has gained widespread attention both for its merits and the striking images and details it presents: a lone Latin Cross, an outcropping called Sunrise Rock, and a vast and desolate national reserve in the Mojave region of Southern California.

On a remote site in the middle of the 1.6 million-acre Mojave National Preserve, ninety percent of which is federally owned, there stands a small cross no more than eight feet tall. A cross was first erected at that site in 1934 by the Veterans of Foreign Wars; it and the subsequent versions have served as a memorial to Americans killed in military service. In 2001, Frank Buono, a former assistant superintendent at the preserve, brought a lawsuit challenging the presence of the cross, claiming it violated the Establishment Clause. He won an injunction at the district court level, and the Ninth Circuit Court of Appeals later agreed that the display was unconstitutional on its face. The case is complicated by issues of standing (Buono is a Catholic who admittedly is not offended by the sight of a cross per se) and by the fact that in 2004 Congress instructed the Interior Department to transfer the land where the cross stands to the Veterans of Foreign Wars in exchange for other privately-held land. Congress also specified that should a “war memorial” cease to be maintained, the land would revert to federal ownership.

Unfortunately, if the oral argument is any indication, the court seems disinclined to rule on the Establishment Clause issue. Rather, the justices’ questions focused on the issues of Buono’s standing and whether the congressional transfer constituted an evasion or a solution to First Amendment problems.

While the Court may ultimately remain silent on the constitutional questions raised in the Buono case, the oral argument was not without climactic moments. Leave it to Antonin Scalia, the court’s fiery Sicilian, to make it exciting. The Justice delivered, getting right at the heart of the weighty constitutional question at the same time. During the argument of Peter Eliasberg, the managing attorney for the ACLU Foundation of Southern California and Mr. Buono’s counsel, the 73-year-old Justice fired questions concerning the nature of the cross as a war memorial. This striking exchange ensued:

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.

SCALIA: Where does it say that?

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—

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?

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.) So it is the most common symbol to honor Christians.

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.

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.

Of course, the “Web Log Atmosphere” (popularly known as the Blogosphere, I believe) and the intellectual elite are up in arms concerning Scalia’s comments. Many have resorted to the tired canard of Scalia as the Catholic zealot, unable to separate his religious views—falsely characterized as radical—from his jurisprudence. The tone of the comments from Geoffrey R. Stone, Professor of Law at the University of Chicago, characterizes the generally vindictive nature of this popular anti-Scalia exercise: “[T]his was neither novel nor playful. Nor was it intellectually interesting. It was, rather, another example of Justice Scalia’s apparent proclivity to see constitutional issues through the lens of his own religious understandings and beliefs.”

Such bile recently oozed from the pages of the Crimson, when a column opened with the regret of the author that he “really didn’t want to write another column about Antonin Scalia, but sometimes the crazy fruit is so low-hanging that you can’t help but pick it.” Interesting, the low-hanging crazy fruit metaphor. The column went on to remark concerning the colloquy in Buono that Scalia “is so committed to upholding the right of the Christian majority to use government property as if it were church grounds that he willfully denies the significance of his faith’s most important symbol.” It then jumped to an elegy over anti-atheist bias that included a defense of the “stridency” of atheist Christopher Hitchens, the bright lite who once announced, “I think religion should be treated with ridicule, hatred and contempt, and I claim that right.”

The stance of the Crimson editorial board seems representative of the majority reaction to this moment in the Buono case. Essentially, Scalia has been portrayed as arguing for the cross as a neutral and generic symbol of honor for the dead, when obviously it can only be associated with one religion. And that point, as NPR’s legal blog noted, “would seem like an odd thing to argue about since it’s doubtful anyone thinks of Islam or Judaism when he or she sees a cross.”

The Justice’s point in the exchange with Mr. Eliasberg was not that the cross is not a religious symbol of Christianity, but that erecting a cross as a memorial designed to signify respect and gratitude for all fallen soldiers—to “honor” them—does not in itself entail disrespect for a non-Christian. In other words, a signification of gratitude and respect does not need to be universally accepted to be a symbol of honor, and when that signification is not universally accepted, it does not automatically violate the First Amendment. Scalia’s objection is that the complaints in this case are not grounded in a vision of the cross as a call to the gospel of Christianity, but to the cross in the context of a public memorial to Americans who have died in this country’s wars. What are we left with if an object has to meet the criterion of universal acceptance in order to be deemed respectful? How can the right to expressions of respect proceed, since universal acceptance cannot conceivably be obtained by any memorial?

The conclusion of such reasoning must be the demolition of all cultural monuments with a religious heritage. Is this what the Establishment Clause requires or necessitates? The separation of church and state was not designed to muzzle the expression of faith, but to protect and enable it. This is what Scalia remembers and what a growing force of strident secularists would have us forget.

The intellectual hypocrisy at play here is stunning. Either the rampant mischaracterization of Scalia’s argument is motivated by a latent anti-religion bias that restricts powers of analytic thought or, once again, Scalia’s intellectual prowess and aptitude for careful deductive reasoning has proven too difficult for liberal law professors, columnists who color themselves “witty,” and other “low-hanging fruit” to follow.

Earlier in the history of this case, at the district court level, the judge’s injunction resulted in the cross being “covered by a plywood box.” This is the sad image of the current state of affairs. And it’s a fitting caricature of the judicial backlash against any semblance of religion in the public square. But that’s a topic for another article. For now, all that can be said is, “God bless Antonin Scalia.”