Washington, USA - As the Supreme Court weighed a dispute over a religious symbol on public land Wednesday, Justice Antonin Scalia was having difficulty understanding how some people might feel excluded by a cross that was put up as a memorial to soldiers killed in World War I.
"It's erected as a war memorial. I assume it is erected in honor of all of the war dead," Scalia said of the cross that the Veterans of Foreign Wars built 75 years ago atop an outcropping in the Mojave National Preserve. "What would you have them erect?...Some conglomerate of a cross, a Star of David, and you know, a Muslim half-moon and star?"
Peter Eliasberg, the American Civil Liberties Union lawyer arguing the case, explained that the cross is the predominant symbol of Christianity and commonly used at Christian grave sites, not that the devoutly Catholic Scalia needed to be told that.
"I have been in Jewish cemeteries," Eliasberg continued. "There is never a cross on a tombstone of a Jew."
There was mild laughter in the packed courtroom, but not from 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," Scalia said, clearly irritated by the exchange.
The court is considering whether the cross' presence on the land violates the Constitution, despite Congress' decision to transfer the land on which the cross sits to private ownership.
Scalia made plain his view of the case, strongly suggesting that he sees no problem with the cross at all. By contrast, lower federal courts did find a constitutional violation and were not persuaded that the land transfer fixed the problem.
The cross has been covered with plywood for the past several years following the court rulings. Court papers describe the cross as being 5 feet to 8 feet tall.
Rather than serve as a statement about the separation of church and state or even how people get past the courthouse door to challenge religious symbols on government land, the case could end up focused narrowly on the land transfer.
Even on that issue, the court appeared divided between conservatives and liberals.
Several conservative justices seemed open to the Obama administration's argument that Congress' decision to transfer to private ownership the land on which the cross sits ends any government endorsement of the cross and takes care of the constitutional questions.
"Isn't that a sensible interpretation" of a court order prohibiting the cross' display on government property? Justice Samuel Alito asked.
The liberal justices, on the other hand, indicated that they agree with a federal appeals court that ruled that the land transfer was a sort of end-run around the First Amendment prohibition against government endorsement of religion.