WASHINGTON -- A cross erected in California's remote Mojave National Preserve captivated the Supreme Court on Wednesday, as the justices clashed over the most closely watched religion case of the year.
The long-running dispute seemed to divide the court along ideological lines. Liberals voiced skepticism about government's support for the cross memorial, while conservatives suggested that they have little problem with the Latin-style cross, which was first installed 75 years ago.
"I don't agree that every time the government allows one religious symbol to be erected it has to allow all religious symbols to be erected in the same place," Justice Antonin Scalia told an American Civil Liberties Union lawyer.
Other justices, however, voiced concern that the federal government's entanglement with the desert cross could violate the First Amendment, which bars Congress from passing any law "respecting an establishment of religion or prohibiting the free exercise thereof."
The cross stands on federal land. Even though Congress wants to transfer the property to private owners, federal fingerprints would remain. The cross is a designated national memorial, and even after being transferred, the land could revert to government ownership eventually.
"How can you say it's completely disassociated?" a dubious Justice John Paul Stevens asked the Obama administration's top lawyer.
In turn, Solicitor General Elena Kagan said that simply posting signs indicating that the cross is no longer on public property could cure any First Amendment concerns about the government endorsing a particular religious symbol.
"The government is perfectly happy to put up signs which make it clear that the plot in question will not in fact be the government's," Kagan said, repeating the point several times for emphasis.
The hourlong oral argument in the case, now called Salazar v. Buono, was rooted in the cross that the Veterans of Foreign Wars' Death Valley Post 2884 erected in 1934 atop Sunrise Rock. A plaque that explained that the cross stood "in memory of the dead of all wars" is now missing.
The cross has been replaced several times. The current cross is described as "between 5 and 8 feet tall," and is constructed of 4-inch-diameter pipes painted white. Critics say it sends a distinctly religious signal that violates the constitutional prohibition against government establishing religion.
"The cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God," ACLU attorney Peter Eliasberg told the court, adding that "I have been in Jewish cemeteries, and I have never seen a cross."
Sunrise Rock is part of the 1.6 million-acre Mojave National Preserve, managed by the National Park Service. It's visible from Cima Road, about 100 yards away. The nearest town is Cima, population about 21.
In 1999, park officials denied a request to erect a Buddhist shrine near the
cross and indicated their intention to remove the cross. Congress blocked the move and designated the cross a "national memorial commemorating United States participation in World War I." Though the designation puts the modest cross in the same league as iconic memorials such as Mount Rushmore and the Lincoln Memorial, Kagan sought to dismiss its significance.
The cross's congressional allies want to give Sunrise Rock to the private Veterans of Foreign Wars in exchange for private land elsewhere. That would leave the cross standing on a 1-acre doughnut hole within the vast government-owned desert preserve.
"It is no longer the government's message," Kagan said.
The man who's challenging the cross, Frank Buono, is a retired park service employee and a practicing Roman Catholic. He says he doesn't object to the cross itself, but rather to the park service's refusal to allow other religious symbols at Sunrise Rock.
Even though one crucial issue is whether Buono has the legal "standing" to challenge the cross, the nine justices largely avoided asking questions Wednesday about the standing issue.
Justices Stephen Breyer and Ruth Bader Ginsburg joined Stevens in voicing skepticism about the government's actions, while Chief Justice John G. Roberts and Justice Samuel Alito joined Scalia in sounding more sympathetic to the cross. Justices Anthony Kennedy and Sonia Sotomayor didn't tip their hands during questioning, and Justice Clarence Thomas was silent as usual.
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