"You Always Wonder, Is There Some Question I Haven't Thought Of?"

(Originally posted on the ACLU of Southern California web site. Also posted to Daily Kos.)

Peter Eliasberg will appear before the U.S. Supreme Court on Wednesday to argue Salazar v. Buono, an important First Amendment case concerning a cross erected by private citizens in California’s Mojave National Preserve. Here are some of his thoughts on the eve of arguing the case before the nation’s highest court.

This is my first case in front of the U.S. Supreme Court. I’ve argued in front of the California Supreme Court, and also seven or eight times before the 9th Circuit. But you sense that this is an even higher level, so yes, I’m nervous.

There are a lot of different issues in this case, and it’s very hard to know what the justices will focus on. Lower courts have already decided that the placement of the cross on federal property violates the Establishment Clause of the First Amendment, and the government did not ask the Court to review that decision. One of the issues to be considered by the justices now is whether that violation is 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 will remain designated a national memorial.

It’s utterly clear that the government’s proposal does not live up to its obligation not to favor any particular religion. The cross is unquestionably a sectarian religious symbol, signifying the divinity of Jesus. As a congressionally designated national memorial to World War I veterans – one of only 49 national memorials in the country – this cross would convey the message that the military values the sacrifices of Christian war dead over those of service members from other faith traditions. This would be true even if the property were to be transferred to private owners.

The cross’s message would not be, as the memorial’s defenders claim, one of commemoration for all war dead and veterans, or for all veterans of World War I. Thousands of Jews, Muslims, Buddhists and members of other faiths who have served their country with honor do not regard the cross as a “universal symbol.” That’s one reason the military allows soldiers and their families to choose which religious symbol to put on headstones in military cemeteries – a policy the ACLU staunchly supports, by the way.

Another issue the justices will consider is whether the plaintiff in the case, Frank Buono, a military veteran, former assistant superintendent of Mojave National Preserve and someone who visits the area of the preserve near the cross regularly, has standing to sue. And there’s also an issue over whether the question of standing has even been properly presented to the court, since the government did not ask the Supreme Court to review the lower courts’ ruling that Mr. Buono had standing when those decisions became final in 2004.

Clearly, Mr. Buono is directly affected. And anyone who is directly affected by government favoritism of one religion can and should be able to sue, if our constitutional freedom of religion is to mean anything. Otherwise, a Jewish student “offended” by school-sponsored Christian prayers, for example, would have no legal recourse.

I’ve done a tremendous amount of preparatory work for this hearing in recent months. You always wonder, “Is there some question I haven’t thought of?” But by and large, I feel ready. I’ve done two moot courts at Harvard, one at NYU and one at Georgetown University. The moots are indispensable to preparation. They are a chance to test your arguments and how well you know them, but also to see what people who are smart think of them.

I drink decaf coffee, so tomorrow before I head to the court, I’ll have a cup or two. There’s really nothing you can do at the last minute before a major case like this except get yourself as grounded and relaxed as you can be, and try to keep your head clear.