Scalia on the Meaning of the Latin Cross

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.

Tom G Varik