Chapter 11 - The Saga Continues:
A Disagreeable Bunch on the Bench
[Working Draft, Nov. 23, 2009]

    This ebook has told the story behind the Court's scandalous Van Orden v. Perry [1] decision. But the story is not really over. The Court is a very disagreeable bunch when it comes to Establishment Clauses [2] cases – often splitting 5-to-4 as it had in Van Orden and McCreary County [3].

    This saga is likely to continue in Salazar v. Buono. [4] In a packed courtroom on October 7, 2009, the Supreme Court heard oral arguments in Buono which involves an Establishment Clause challenge to the presence of a Christian cross atop Sunrise Rock in the Mojave National Preserve in California.

    Transcript: [5]

MR. ELIASBERG: The plaque says: "This cross" -- in big letters -- "erected in honor of the dead of foreign wars." I think it would be very -- [6]

CHIEF JUSTICE ROBERTS: And that's it? Nothing else?

MR. ELIASBERG: Nothing else. I think it would be very odd indeed for the VFW to feel that it was free to take down the cross and put up, for example, a statues of a soldier which would honor all of the people who fought for America in World War I, not just Christians, and say: Well, we were free to do that because even though there's the sign that says, this cross is designated to honor all the --

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --

MR. ELIASBERG: I believe that's actually correct.

USTICE SCALIA: Where does it say that?

MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans --

JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.

(Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE 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.

MR. ELIASBERG: Well, my -- the point of my -- point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross. This cross can't honor us because it is a religious symbol of another religion.

    It is unfortunate for America, as we can see from this exchange between Mr. Eliasberg and Justice Scalia, how out of touch with reality a Supreme Court justice can be (e.g., Justice Scalia's view that the Christian cross is a universal symbol of death and remembrance). While those in attendance at the oral arguments, including myself, got chuckle from Justice Scalia's statements, the sadness is apparent too.

    Four years early, the Court simultaneously handed down decisions in — Van Orden and McCreary County — which are essentially irreconcilable. That's because members of the Court have been unable to agree on the meaning of the Establishment Clause of the First Amendment. Thus, the slightest factual difference may be enough to produce a different result between two cases.

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1. Van Orden v. Perry, 545 U.S. 677 (2005).
2. The Establishment Clause reads: "Congress shall make no law respecting an establishment of religion . . ."
3. McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).
4. Salazar v. Buono, No. 08-472. In Buono I, the District Court held that the presence of the Christian cross on public property violated the Establishment Clause and issued an injunction ordering the cross's removal. In Buono II, the 9th Circuit U.S. Court of Appeals affirmed Buono I. Congress stepped in and passed legislation designating the cross as a national memorial and agreeing give the acre beneath the cross to the Veterans of Foreign Wars in exchange for five acres from a private party. Buono, in Buono III then went back to the District Court seeking to enforce the original injunction. The District Court granted Buono's request and modified the original injunction to include preventing the land transfer from being consummated. The District made a finding that the federal government retained significant interests in the cross and, therefore, the proposed land transfer would not have cured the Establishment Clause violation. In Buono IV, the 9th Circuit again affirmed the District Court.
5. Salazar v. Buono, Transcript, October 7, 2009, pages 37-39.
6. Peter Eliasberg, with the ACLU of Southern California, represented respondent Frank Buono.