High Court Hears Religious Symbol Case

MICHELE NORRIS, Host:

This is ALL THINGS CONSIDERED from NPR News. I'm Michele Norris.

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And I'm Melissa Block.

The topic today for the Supreme Court was a white cross five feet tall. It was erected high on top of an outcropping of rocks on a huge national land preserve in the Mojave Desert. The case tests when a religious symbol placed on government land violates the Constitution by favoring one religious view.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: The Veterans of Foreign Wars put up the cross without permission in 1934 to honor World War I soldiers. It has since been rebuilt twice by private citizens. In 1999, when a Buddhist asked for permission to erect a shrine nearby, the park service said no. That set in motion a series of events in the courts and Congress, culminating today in the U.S. Supreme Court.

When the lower courts ruled that the cross unconstitutionally favored one religious view, Congress designated the cross as the only national memorial to World War I soldiers, and it transferred to the VFW the acre of land on which the cross stands on condition that the memorial be maintained. The lower courts ruled that it was in illegal end-run, and the government appealed to the Supreme Court.

Jim Sims, the national commander of the Military Order of the Purple Heart, was one of many veterans at today's argument supporting the cross.

JIM SIMS: Our concern as veterans is not just a single cross, but it's every memorial to veterans whether it's in my home state of Washington or here on the Washington Mall.

TOTENBERG: But the ACLU's Peter Eliasberg countered that the World War I Memorial in the Mojave Desert is unlike other war memorials because it's a lone cross with no other religious symbols nearby.

PETER ELIASBERG: To say that a cross represents the sacrifices of the 250,000 Jews who fought for this country in World War I is simply not true.

TOTENBERG: Inside the court room, most justices seemed to accept that because the Bush administration did not appeal the lower court decisions, declaring the cross unconstitutional, the only question before the court is whether the federal government's land transfer was an illegal dodge.

Solicitor General Elena Kagan conceded there are limits to how the government can transfer land for a memorial. For example, it would not be permissible if the cross still looked to be on public land.

Chief Justice Roberts: Why isn't that the case here? Answer: Because this area is riddled with private holdings. Eighteen hundred private plots dotted all over the 2,500-square-mile preserve. So tomorrow, she said, 1,000 crosses could go up and nobody would know whether they were on private or public land.

Arguing against the cross was Peter Eliasberg of the ACLU. He faced close questioning from two justices, Samuel Alito and Antonin Scalia. Alito suggested that the court should take the government at its word that it had jettisoned any connection to the cross. Justice Scalia went further. I will stipulate, said Scalia, that the government was trying to arrange it so that the cross could remain there, but that doesn't mean it's invalid.

Answer: It's invalid because the government didn't act in a neutral way. It didn't put the land up for bid. It gave the land to the group it had already favored. It designated the cross as one of 49 national memorials and it conditioned the land transfer on maintaining the cross.

W: The cross doesn't honor non-Christians who fought in the war? Where does it say that? Answer: It doesn't say that. But the cross is the predominant symbol of Christianity.

D: The cross is the most common symbol of the resting place of the dead. What would you have them erect, some conglomerate of a cross, a Star of David and a Muslim half moon and star? Answer: The cross is the most common symbol of the resting place of Christians. I've been in Jewish cemeteries, there's never a cross on a tombstone of a Jew.

NORRIS: I don't think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that's an outrageous conclusion.

VFW: Suppose the government took down the cross, gave it to the VFW, then sold them the land and the VFW put the cross back up. Lawyer Eliasberg conceded that would likely be okay. But he added, it's not what happened here.

Justice Ginsburg: Then we're talking about something that's rather formal than substantial. Answer: It's not just formalism because under your scenario, the government would have no remaining interest in the land, whereas here, Congress conditioned the land transfer on maintaining the memorial.

Justice Ginsburg: If you prevail, what happens in Arlington Cemetery where there's the Argon cross memorial and the Canadian Cross of Sacrifice? There would be no problem with those, said lawyer Eliasberg, because they're among many religious symbols at Arlington.

Indeed, he noted, Arlington offers 39 different religious symbols for headstones. What would be a problem, he said, would be if Israel, for example, wanted to give a Star of David memorial just as the Canadians did a cross and the government refused to accept it. A decision in the case is expected later in the term.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.