ACLU's Eliasberg: A cross to bear - Arguing First Amendment case at the Supreme Court

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Last October, I argued a case in front of the U.S. Supreme Court that revolves around whether a cross in the Mojave Desert violates the First Amendment prohibition on government favoritism toward any religion. The court has still not issued a decision, although one could come at any time. But the intervening six months have given me plenty of time to reflect on the experience of making my first-ever appearance in front of our nation's highest court, and about an interesting exchange that I had with Justice Antonin Scalia...

The case, Salazar v. Buono, is a complicated one that juggles many issues. Lower courts had already decided that the placement of the cross on federal property violated the First Amendment, and that decision became final in 2004. One of the key remaining issues was whether that violation would be meaningfully eradicated by the government's proposal to transfer ownership of the small patch of land on which the cross stands to a local veteran's group — even though the cross would remain designated a national memorial...

It's hard to know if Justice Scalia was grandstanding when he asked me, incredulously, on what I based my view that a Latin cross does not represent all veterans. I didn't want to be disrespectful, but I did think to myself, “I can't believe he's asking me this.” Scalia, a devout Catholic, was suggesting that the Latin cross was some sort of nonreligious, universal symbol. Yet thousands of Jews, Muslims, Buddhists and members of other faiths who have served their country with honor do not regard the cross in this way. I had to respond, so I said, “Justice Scalia … I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.” ...

When the oral arguments were over, I first kissed my wife, Catherine, then hugged my son. Then we went to lunch with some friends and associates. Believe me, after the morning I'd had, I wasn't going to have a cup of tea. I had a stiff gin and tonic. And then the waiting began.

http://www.mydesert.com/article/20100409/COLUMNS26/4090343/1026/news12/A-cross-to-bear-Arguing-First-Amendment-case-at-the-Supreme-Court


This case could be released very soon.