The Veterans of Foreign Wars erected a cross in 1934 in San Bernardino County, Calif. - in what is now the Mojave National Preserve - to honor America's war dead. Since then, the cross has been replaced several times, most recently around 1998. Its religious significance is clear, but the National Park Service has not allowed other religions to add symbols. In 1999, the park service denied a request by an individual to place a Buddhist memorial in the area. The cross has also been the site of Easter sunrise services for more than 70 years.

During oral arguments, Associate Justice Scalia grew indignant when an ACLU attorney explained the religious significance of the cross to the justices. The Seattle Times described the exchange:

In a discussion over whether the display of a cross within a public preserve violated the First Amendment ban on "establishment of religion," a Los Angeles lawyer for the American Civil Liberties Union (ACLU) said a cross "is the predominant symbol of Christianity.

"It signifies that Jesus is the son of God and died to redeem mankind for our sins," Peter Eliasberg told the justices. But because of its special religious significance, he said, it should not stand alone as a prominent symbol in a national park.

Justice Antonin Scalia disagreed. "It's erected as a war memorial. I assume it is erected in honor of all the war dead." Eliasberg objected. "I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew," he said.

Scalia shot back angrily, "I don't think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that's an outrageous conclusion."

As I have previously discussed Justice Scalia seems to have a recurring habit of equating common rights with his own religious views (which are decidedly traditionalist orthodox Catholic; Scalia is a cooperator of the socially conservative Opus Dei which sees secular government as a means to effect Catholic morality).  

The ever-reliable Catholic League president Bill Donohue also jumped into the fray. In an October 7, 2009 press release:

In 1892, the U.S. Supreme Court ruled that "this is a Christian nation." Ever since, radical secularists have tried to stamp out that reality, holding that it excludes non-Christians. It does, and that is because this country's founding was not the work of non-Christians: to be precise, it was the work of Protestant, white, heterosexual men. Not Catholics or Jews, not blacks, not homosexuals, not females.

He then added:

it is simply not true to insist that the founders said "there must be a wall of separation between church and state." That metaphor was broached by Thomas Jefferson in 1802 in a letter to Baptists, and two days later he went to church services in a government building, the Capitol, thus making mince meat of the argument that he wanted a wall between church and state. So if Mr. Church and State thought it okay to have Christian services in a taxpayer-funded building, does the Times or the ACLU really think that Jefferson, or any of the founding fathers, would object to a cross-privately funded-on public lands honoring veterans, almost all of whom were Christians?

What Donohue is referring to is the 1892 U.S. Supreme Court ruling for Church of the Holy Trinity v. United States. Specifically he is citing the opinion of Associate Justice David Josiah Brewer. While Justice Brewer's decision focused more upon the effect federal legislation prohibiting the importation of non-American laborers, Donohue's relies too much on dicta, editorializing statements without little authoritative basis.

And indeed, Brewer's presumption runs contrary to American history. It clashes with Article 11 in the 1797 Treaty of Tripoli, that declared "...the Government of the United States of America is not, in any sense, founded on the Christian religion." For the record, the treaty was unanimously passed by the U.S. Senate and signed into law by President John Adams - a group of men who just about all had a hand in the country's founding.

Beyond that, Donohue's reliance upon Justice Brewer's misconceptions also run counter to Founding Father (and co-author of the Constitution) James Madison's sentiments on church-state relations.  In his famous tome on the subject, Memorial and Remonstrance Against Religious Assessments, Madison posed this question:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

In fairness to the veterans who erected the cross they most likely had no thoughts of religious supremacy in mind when they erected the cross. If anything, they were men who thought and acted as many similarly did of their time; assuming that non-Christian citizens would accept they symbol without insult. After all, 1934 was a very different time: Jews, Muslims and even non-Protestant Christians often wrongly thought of themselves as almost being tolerated, as if they were allowed by others to thrive in America. More importantly, it was then far less common for non-Protestants to openly petition that their beliefs be accorded equal respect.

But that time has passed. As a nation we have moved from a position of religious toleration to one of a truer respect of all expressions of conscience - a fact clearly lost on Messrs. Donohue and Scalia. Instead they openly telegraph their view of Christianity as the supreme American creed. With Justice Scalia's belief in judicial original intent, perhaps it is time for him to reexamine the question posed to us so many years ago.

As a people we increasingly strive to do more than tolerate the beliefs of others, we have instead grown to respect each American's pursuit of conscience as a sacred right, a concern never far from the Founders' intent.

And Donohue should be more careful about relying upon the 1892 mindset of a Supreme Court of which Justice Brewer sat. Just three years later four of the nine justices who joined Brewer in his unanimous ruling in Church of the Holy Trinity v. United States also formed the majority of the seven justices who gave us Plessy v. Ferguson, the pernicious ruling that made "separate but equal" a federally sanctioned excuse for segregation (for the record, Josiah Brewer abstained from Plessy).

What's more, modern jurisprudence has moved clearly in the direction of support for religious equality, and crank declarations of Christian nationalism do not creep into the majority opinions of the court, even if they do sometimes erupt from the ever-zealous Scalia.

It would serve both Justice Scalia and Bill Donohue well to recall another case decided just prior to Church of the Holy Trinity v. United States, that of  The Edgerton Bible Case. In that 1890 matter the Wisconsin Supreme Court overturned its state's requirement that all public school students -- including Catholic children - read only from the Protestant King James version of the Bible.  

It is worth noting that Justice William Brennan -- a Catholic more representative of the majority of his American co-religionists than Justice Scalia - cited Edgerton in his concurrence with Justice Hugo Black's majority opinion for the 1963 landmark case of Abington Township School District v. Schempp:

Whatever Jefferson or Madison would have thought of Bible reading or the recital of the Lord's Prayer in ... public schools ..., our use of the history ... must limit itself to broad purposes, not specific practices. ... [T]he Baltimore and Abbington schools offend the First Amendment because they sufficiently threaten in our day those substantive evils the fear of which called forth the Establishment Clause. ... [O]ur interpretation of the First Amendment must necessarily be responsive to the much more highly charged nature of religious questions in contemporary society. A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected.

The proper place for a religious monument on government land is in a military cemetery as a headstone. In this most dignified of ways, the individual belief of the deceased is duly and respectfully honored without impeding upon the beliefs of others interned alongside.

But beyond that, a headstone that reflects the belief - or non-belief - of a given veteran says something greater about faith in America; that it is an individual's desire for freedom of conscience that is greatly prized most by our Republic.

A cross next to a Star-of-David next to a Crescent and Star - each marking the final resting place of courageous patriot -- is a far greater tribute to the heritage of religious freedom generations of our citizens have fought and died for, doing so far more effectively than a single cross that officiously claims to speak for all.