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Oct 9, 2009 
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The Supreme Court held oral argument on yet another case having to do with religious symbols on public land. I hate this line of cases so much, mostly because I hold both of these thoughts:
1. Religious displays on public property are clearly unconstitutional.
2. I do not give a shit if the town council sticks a Nativity scene in the middle of the Winter Carnival.
The former probably owes something to being an atheist. The latter, probably, because strident, inevitably smug, atheists annoy me almost as much as proselytizing for faith does. The whole thing leads me to sigh whenever another one of these cases comes up. It must be exhausting to be offended all the time by your neighbors being themselves in public and it doesn't get less exhausting to spend all that time fanning one's self with the Constitution.
On the other hand, the only thing more exhausting in all of these cases is the disingenuous contortions that the supporters of these public displays have to make in order to justify them under the First Amendment. Santa isn't really a religious figure; the Christmas Tree is a secular symbol; Christmas itself is a "seasonal" reference. In all of this, Scalia is rare among the supporters of these public displays in that he finds these arguments preposterous – as much an insult to faith as it is to the First Amendment. On the other hand, Scalia doesn't think that religious displays on public property raise any constitutional question at all, so you have to take the good with the bad. Or, at least, you used to. Now it's all bad.
During Wednesday's oral argument on the latest of these cases, Salazar v. Buono, Scalia didn't see what the big deal was about having an 8-foot tall cross as a World War I memorial on the Mojave National Preserve, as reported in Slate:
Justice Antonin Scalia: "The cross doesn't honor non-Christians who fought in the war?"
Counsel for Respondent, Peter Eliasberg: "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."
AS: "It's erected as a war memorial! 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."
PE: "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."
AS: "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. I think that's an outrageous conclusion!"
So now you can't even count on Scalia to admit that religious symbols are, in fact, religious. Scalia's stance is the kind of position that could only be taken by a man who ascribes to the dominant faith in his society and still manages to feel oppressed. That he could assert with a straight face that the ubiquity of crosses on gravestones, in a country where Christians are ubiquitous, has become a universal symbol beggars belief. And he didn't just say it with a straight face. I omitted Slate's descriptors of Scalia's tone so the colloquy would read neutrally, but they were "stunned" and "thundered." He was not only serious that a Jew (or Muslim or atheist) should feel honored by a cross, he was offended that they wouldn't be.
Where this case will end up is anyone's guess right now because, as usual, the specific facts of this case involve a delicate dance around the Constitution. After a District Court ruled that the display was a violation of the Establishment Clause and issued an injunction, Congress hastily transferred a tiny parcel of land – more or less the ground underneath the cross – to a local VFW. Nevermind that this 'private land' still sits smack in the middle of a national park. The 9th Circuit, of course, minded this little legerdemain and so it kept the injunction in effect. There is a separate fight over standing, a third fight over which injunction the Court is supposed to be considering… All in all it is a bit of a clusterfuck, as happens a handful of times each term.
Even if they never reach the Establishment Clause question on this case, the oral argument will stand as a more prominent monument to Justice Scalia's blinders more prominently than the Mojave Cross ever stood for anything.
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