The ongo­ing con­tro­versy over a Latin cross erected in 1934 on Fed­eral land in Mojave National Pre­serve to honor WWI dead reached the Supreme Court today on the ques­tion of whether Con­gress’ sale of the land where the cross sits to a pri­vate entity in an effort to remove the con­sti­tu­tional vio­la­tion itself vio­lated the injunc­tion order­ing the gov­ern­ment to remove the con­sti­tu­tional violation.

Photo by Eric Nys­trom, cour­tesy National Park Service

The case is Salazar v. Buono, and oral argu­ments were held this morn­ing. Tran­script is here.

The con­sti­tu­tion­al­ity of the cross was not before the Court today. The ques­tion was whether Con­gress vio­lated the lower court’s injunc­tion by sell­ing the land to a pri­vate entity instead of tak­ing it down. Nonethe­less, the mean­ing of the sym­bol came up and lead to this exchange:

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.

JUSTICE 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.

It appears to some (includ­ing an NPR com­men­ta­tor) as though Scalia is say­ing that the Latin cross prop­erly memo­ri­al­izes dead peo­ple, regard­less of their reli­gion. But really he’s argu­ing that a memo­r­ial in the shape of a cross can prop­erly memo­ri­al­ize dead peo­ple, regard­less of their religion.

For­tu­nately the con­sti­tu­tion­al­ity of the cross is not some­thing Scalia gets to rule on in this case. The cross is decid­edly uncon­sti­tu­tional. The ques­tion is only whether Con­gress’ cho­sen method of rem­e­dy­ing the con­sti­tu­tional vio­la­tion (sell­ing the land) vio­lated the injunc­tion pro­hibit­ing the con­tin­ued dis­play of the cross. But it is an inter­est­ing glimpse into how Scalia thinks about the role of reli­gion in soci­ety, and, by exten­sion, government.