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A ‘Visibly Angry’ Justice Scalia Ponders ‘Some Conglomerate of a Cross’

Posted Oct 8, 2009 8:41 AM CDT
By Debra Cassens Weiss

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Civil procedure questions dominated most of the oral arguments Wednesday in a challenge to the placement of a cross to honor the war dead in the Mojave National Preserve, but that doesn’t mean fireworks were absent from the debate.

Justice Antonin Scalia provided the drama in an exchange with Peter Eliasberg, a lawyer with the American Civil Liberties Union Foundation of Southern California. The National Law Journal highlighted the disagreement with this headline: “At High Court, Cross Words Over Mojave Memorial.” A New York Times account said Scalia grew “visibly angry,” while the Washington Post called the exchange of words “testy.”

The dispute began when Eliasberg said Jewish war veterans would not want to be honored by a cross. Scalia disagreed. “What would you have them erect?” Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Eliasberg said Jewish cemeteries he has visited don’t have crosses. Courtroom spectators laughed, but Scalia didn’t join in. "I don't think you can leap from that to the conclusion that the only war dead that cross honors are the Christian war dead,” Scalia said. “I think that's an outrageous conclusion."

Earlier, Justice Stephen G. Breyer acknowledged that "Procedurally, this is a little boring," according to The BLT: The Blog of Legal Times.

Among the questions considered Wednesday in Salazar v. Buono: Does a retired employee of the National Park Service have standing to sue over the cross? And did Congress succeed in bypassing the establishment clause dispute by transferring the land to private ownership?

The BLT noted the procedural questions. “For much of the hour, you might have been forgiven if you thought you were back in civil procedure class,” the blog said. According to the BLT, the arguments made clear that the government didn’t appeal the standing issue, making it unlikely the case will be decided on that ground.

After the arguments, the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called Scalia's cross comments "shocking" and "outrageous," the Los Angeles Times reports.

Article corrected at 6 a.m. on Oct. 9 to reflect that the "boring" comment was made by Justice Stephen G. Breyer.


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