Congess Shall Make No Law...

It is generally agreed that on a panel of very smart people, Justice Antonin Scalia stands out for his intelligence. Even his critics, and there are many, point out to the point of cliche that it is not his reasoning that they disagree with, but his conclusions. But Scalia during oral argument last week in Salazar v. Buono proved that occasionally even very smart people can say very stupid things.

Salazar v. Buono is another First Amendment case, being heard at the opening of this year's term. But rather than dealing with the First Amendment guarantee of Free Speech it deals with the issue of the prohibition against the of government's establishment of religion. Part of religious establishment is the prohibition for government to favor one religion over another.

The issues in Salazar stem from a large memorial cross that was erected in California's Mojave Desert as a war memorial honoring fallen American soldiers. It was first erected by the Veterans of Foreign Wars in 1934. The original cross has been replaced several times, most recently in 1998. The cross has been a regular gathering place for Easter worshippers over the years.

A year after the most recent cross was erected a request was made to the National Park Service to erect a Buddhist memorial on land near the cross. That request was denied. Two years later, Frank Buono, a Park Services employee filed suit in Federal District Court claiming that the cross violated the Constitution's Establishment Clause. The Court issued an injuction ordering that the “Defendants, their employees, agents, and those in active concert with Defendants, are hereby permanently restrained and enjoined from permitting display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”

While the case was appealed, and pending, Congress acted with three pieces of legislation: The first was to pass an appropriations bill which included a section designating the Sunrise Rock cross as a “national memorial.” The second was to pass an appropriations bill barring the use of federal funds “to dismantle national memorials commemorating United States participation in World War I.” And the third was to pass another appropriations bill that included a land exchange agreement regarding the Sunrise Rock cross in which an acre of land containing the cross was conveyed to the Veterans Home of California— Barstow, Veterans of Foreign Wars Post #385E in consideration for five acres of land.

The purpose of the transfer was to remove the land in question from public ownership. If the land was owned by a private entity the private organization, in this case the local VFW, could do what it wanted with the land and the First Amendment would not apply. However, there was a catch: The government retained a reversionary interest in the property subject to a condition that the recipient maintain the conveyed property as a memorial commemorating United States participation in World War I and honoring the American veterans of that war. In other words, if the cross was removed, the land would belong to the Federal Government once more. The intent of the legislation was blatantly obvious. It was an end run around the Courts, and more cynically, considering the legislature was made up of a majority of Senators and Congressmen demanding "Judges who would interpret the Constitution, not legislate from the bench," a method of disallowing Judges from making a basic interpretation of Constituiton's Establishment Clause to achieve a result that the majority of the then existing Republican Congressional majority desired.

Despite Congress' mechinations the Ninth Circuit Court of Appeals affirmed the District Court's injunction. Despite the Court's decision in 2005, the Congress went forward in initiating the land exchange to the VFW. Despite Congress' action the Ninth Circuit Court of Appeals ruled that the land exchange was intended to promote a relgious purpose and unlawful under the Establishment Clause.

Which brings us to today: Buono is still arguing, eight years later, to the Supreme Court that a cross first erected in 1934, but not formally complained about for 67 years, violates the First Amendment. The Department of the Interior seeks a judicial determination in its favor on procedural grounds. The government, interestingly enough, is not arguing that the cross is not an establishment of religion, but rather that Frank Buono cannot bring a lawsuit under the doctrine of Standing. Standing is a technical rule which requires that in order to maintain a lawsuit, a Plaintiff must show that he has a personal stake in the matter. The government is arguing that Buono has sustained no injury and will not suffer any personal harm if the Court rules against him, and accordingly does not have standing. Apparently the Government does not want a fight on the actual merits of Buono's claim.

In last week's oral argument Peter Eliasberg, Buono's lawyer said that it is clear that the cross violates the First Amendment. "Such a memorial," argued Eliasberg, "signifies Jesus is the son of God and died to redeem mankind for our sins. There is no coherent construction of the cross that could present it as a secular memorial."

Justice Scalia questioned whether Eliasberg would prefer "Some conglomerate of a cross, a star of David and a Muslim half-moon and star?"

Eliasberg responded "I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."

Scalia scoffed, "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."

What is outrageous is that Scalia articulated that a Christian cross can somehow be construed a universal secular memorial symbol from a bench which includes two Jewish Justices.