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When Congress passed a law transferring the property around a war memorial cross in the Mojave National Preserve into private hands, did that resolve a court ruling that the cross violated church-state separation?

The U.S. Supreme Court grappled with that question Wednesday and related thorny issues, including how veterans should be memorialized and whether other cross-shaped war memorials are in danger of being taken down.

The case reached the nation's highest court eight years after a former assistant superintendent of the preserve sued because the National Park Service permitted the cross on its land but rejected a Buddhist shrine.

Solicitor General Elena Kagan argued that the transfer to the Veterans of Foreign Wars, arranged through a 2004 act of Congress, was a proper way to handle the complaint."The Establishment Clause does not prohibit the sensible action Congress took," she argued on behalf of the government.

She said a lower court left the government with two options when it determined the memorial was unconstitutional: either remove the cross, which had "acquired deep meaning for the veterans in the community," or find a way to dissociate the government from the 7-foot symbol.

Peter Eliasberg of the ACLU Foundation of Southern California argued that the congressional remedy amounted to preferential treatment since it was transferred to the very group that first erected the cross in 1934.

"The government is taking affirmative steps to permit, through this transfer statute, the display of the cross that they are enjoined from doing," said Eliasberg, who represented Frank Buono, the former preserve employee.

The justices delved into questions about how many national memorials exist with religious symbols and whether such memorials would be appropriate in various locations across the country.

"There is, for example, a statue of a Catholic priest holding a very large cross," said Kagan, referring to a monument to explorer and priest Jacques Marquette in Michigan. "But most national memorials are … not religious. Some are."

She suggested that a religious building, such as a church or synagogue, could be a national memorial if it had particular historical significance, such as links to the civil rights work of the late Rev. Martin Luther King Jr. "In order to honor Dr. King, I think that would be permissible," she said.

But she said national memorials can be on public or private land.

Kagan argued that in the case of the Mojave cross, "if the transfer had taken place it would no longer have been the government's property." A lower court blocked the transfer as an insufficient remedy.

Eliasberg said the retention of the Mojave cross as a national memorial on private land is questionable.    

"A cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind (from) our sins," he argued.

Justice Antonin Scalia disagreed.

"The cross is the … most common symbol of … the resting place of the dead," Scalia said, calling Eliasberg's contention that the cross only honors dead Christian veterans "outrageous."

He asked Eliasberg if he'd prefer "some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star."

Eliasberg countered that crosses are not put on Jewish tombstones. "The cross is the most common symbol of the resting place of Christians," he said.

The location of a cross-shaped memorial was also addressed by the justices, who compared its site—as Chief Justice John Roberts put it—"in the middle of nowhere" to a more visible location on the National Mall in Washington.

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October (Web-Only) 2009, Vol. 53