To What is the VFW Bound? Post-Gaming the Mojave Cross Arguments

[WSJ_law_blog]

Had we gotten word after Wednesday’s big Supreme Court argument that the court seemed inclined to object to the presence of a five-foot-tall cross in the Mojave National Preserve, we would have been a bit surprised.

After all, the lower court ruling on appeal came from the Ninth Circuit, which isn’t known for issuing rulings that delight the Supreme Court. And the subject of the case, involving a lone cross in the middle of nowhere, struck us as one the current court might eagerly dig its teeth into.

Indeed, from the sound of how the argument went today, we’ve no reason to be surprised.

According to WSJ reporter Jess Bravin, the court on Wednesday seemed inclined to permit the cross while at the same time avoiding a broader ruling that could affect religious symbols on government property. Click here, also, for coverage from the LAT’s David Savage; here for yesterday’s LB post on the case.

Lower courts initially found that the presence of the cross violated the Constitution’s ban on a congressional “establishment of religion.” Congress then declared the cross a “national memorial” and voted to transfer an acre surrounding it to the Veterans of Foreign Wars, whose local post first built a cross there in 1934 as a memorial to fallen soldiers.

Given another bite at the apple, lower courts found the arrangement effectively was a sham.

At Supreme Court arguments Wednesday, the justices looked closely at the terms of the 2004 act transferring the property. According to Bravin, the court’s decision could turn on whether the justices conclude the act requires the VFW specifically to maintain the monument — as a cross. And on that front, Solicitor General Elena Kagan, representing the Obama administration, said the act gave the group discretion. The act requires only that the VFW maintain “a war memorial. It does not have to be this war memorial.”

But Justice Stevens seemed skeptical. “How can you say that?” he asked. “If they don’t maintain the cross, which is the monument, [the property] goes back to the government.”

Peter Eliasberg, a Los Angeles attorney representing the plaintiff, agreed with Stevens, saying the VFW “wouldn’t feel free to take this down” if it wanted to.

Justice Alito, for one, wasn’t having it. “When the solicitor general represents to us that the VFW will be perfectly free to modify this memorial in any way it chooses…do you think that there’s any realistic fear that they will be required to maintain this cross, even if they wish to change it in some way?”

But perhaps the most interesting — and perplexing — exchange occurred between Eliasberg and Justice Scalia. Scalia disputed the premise behind the lawsuit, telling Eliasberg that it was unfair to view the cross merely as a Christian symbol.

“The cross is the most common symbol of the resting place of the dead,” he said. “What would you have them erect? Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?”

Responded Eliasberg: “I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew. So it is the most common symbol to honor Christians.”

“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,” Justice Scalia said. “I think that’s an outrageous conclusion.”

LB Housekeeping Note: Starting Thursday, I’ll be on vacation, returning to man the ship early the week after next. In my absence, the LB will be in the always capable hands of Nathan Koppel, Jennifer Forsyth and the rest of the law group. In the meantime, Go Angels!