The 5-to-4 decision provided an unusually vivid glimpse into how deeply divided the court is on the role religious symbols may play in public life and, in particular, the meanings conveyed by crosses in memorials for fallen soldiers.
“A Latin cross is not merely a reaffirmation of Christian beliefs,” Justice Anthony M. Kennedy wrote in a plurality opinion joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies would be compounded if the fallen are forgotten.”
Justice John Paul Stevens rejected that view. “The cross is not a universal symbol of sacrifice,” he wrote in a dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. “It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith.”
The disagreement recalled perhaps the most heated exchange of the term, from the argument in the case in October.
Peter J. Eliasberg, a lawyer with the American Civil Liberties Union of Southern California, said many Jewish war veterans would not want to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”
Justice Antonin Scalia responded that the symbol in the context of a war memorial carried a more general meaning. “The cross is the most common symbol of the resting place of the dead,” he said.
Mr. Eliasberg said, “There is never a cross on the tombstone of a Jew.”
Justice Scalia, who is usually jovial even in disagreement, turned angry. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead,” he said. “I think that’s an outrageous conclusion.”
Illuminating though it was, Wednesday’s decision in the case, Salazar v. Buono, No. 08-472, settled very little. It did overturn a trial court’s order rejecting a Congressional solution to an earlier ruling that the cross conveyed the constitutionally impermissible message of government endorsement of religion in violation of the First Amendment’s establishment clause. But the Supreme Court did not rule on the solution itself and instead returned the case to the lower courts for reconsideration.
The first ruling, on the core First Amendment question, was not before the Supreme Court. Instead, the justices considered a federal law enacted in reaction to the first ruling that called for the government to transfer the acre of land on which the cross sits to private hands. In a second round of litigation, the lower courts ruled that the law was an unlawful effort to evade the first ruling.
Justice Kennedy wrote that those recent decisions were too glib in failing to consider the government’s dilemma.
“It could not maintain the cross without violating the injunction,” he wrote, “but it could not remove the cross without conveying disrespect for those the cross was seen as honoring.”
He added, “The land transfer-statute embodies Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause has complex meaning beyond the expression of religious views.”
But Justice Kennedy, in a part of his opinion joined only by Chief Justice Roberts, did not uphold the land-transfer law outright. Instead, the court sent the case back to the trial court for another look in light of the analysis in Wednesday’s decision.
In a concurrence, Justice Alito said there was no need for further proceedings and that he would have upheld the law.
Justice Scalia, joined by Justice Thomas, agreed with the majority that the ruling below, from the United States Court of Appeals for the Ninth Circuit, in San Francisco, should be reversed — but on a different ground. Justice Scalia said the plaintiff in the case, Frank Buono, a retired employee of the National Park Service, lacked standing to sue.
Justice Stevens said he had no quarrel with war memorials. But a “solitary cross,” he said, “conveys an inescapably sectarian message.” Worse, he said, “Congress has established no other national monument to the veterans of the Great War,” meaning that “this solitary cross in the middle of the desert is the national World War I memorial.”
“Making a plain, unadorned Latin cross a war memorial does not make the cross secular,” he added. “It makes the war memorial sectarian.”
Justice Stephen G. Breyer also dissented, but on a different ground. He said the trial court should have been allowed to decide whether the land-transfer law violated its earlier orders. The case was thus not about religious symbols, he said, but about “the law of injunctions.”
The cross was first erected in 1934 by private citizens to honor soldiers who died in World War I. It has been replaced and repaired over the years and today stands on government land in the Mojave National Preserve in California more than 10 miles from the nearest highway. These days, it is covered by a plywood box.