It’s Not a Christmas Tree
Per Dahlia Lithwick, Justice Scalia tries to pour new wine into old wineskins, with unconvincing results:
There’s just one person at oral argument in Salazar v. Buono this morning who really wants to talk about whether a 5-foot cross on federal government land in the Mojave National Preserve violates the Constitution’s Establishment Clause. But Justice Antonin Scalia really, really wants to talk about it. He looks particularly queasy when Peter Eliasberg—the ACLU lawyer whose client objects to crosses on government land—suggests partway through the morning that perhaps a less controversial World War I memorial might consist of “a statue of a soldier which would honor all of the people who fought for America in World War I and not just the Christians.”
“The cross doesn’t honor non-Christians who fought in the war?” Scalia asks, stunned.
“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,” replies Eliasberg, whose father and grandfather are both Jewish war veterans.
“It’s erected as a war memorial!” replies Scalia. “I assume it is erected in honor of all of the war dead. The cross is the most common symbol of … of … of the resting place of the dead.”
Eliasberg dares to correct him: “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.”
“I don’t think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead,” thunders Scalia. “I think that’s an outrageous conclusion!”