Barry, I believe the Supreme Court ultimately will conclude that the plaintiff did not have legal standing here – that this challenge was legally flawed from the very start.
Merely being ‘offended’ does not give the plaintiff a legal green light to go to court to challenge this memorial. As you know, just because the ‘standing’ issue did not receive a lot of attention during oral argument does not mean the Justices are ignoring it. They won’t and in the end I believe our side will carry the day on this issue.
Second issue: the Establishment Clause question. Does the placement of a cross on what was once public land – but now private land – constitute a violation of the Establishment Clause? I believe the answer is ‘no’ and I am hopeful that’s what a majority of the court will determine.
As you know, there were several spirited exchanges in court. One that caught my attention was this exchange between Chief Justice Roberts and ACLU attorney, Peter J. Eliasberg, about the text on the plaque – as reported by the New York Times.
The chief justice asked for the text of the plaque.
” ‘This cross’ — in big letters — ‘erected in honor of the dead of foreign wars,’ ” Mr. Eliasberg responded.
A couple of minutes later, Chief Justice Roberts returned to the subject and corrected Mr. Eliasberg. The actual text on the plaque, the chief justice said, was more elaborate: “The cross, erected in memory of the dead of all wars, erected 1934 by members of Veterans of Foreign Wars, Death Valley Post 2884.”
“That’s a big difference,” the chief justice said, explaining that the longer version made clear that the cross was not a government memorial.
I believe the court will reach the same conclusion about this war memorial as it did in a case that I argued last term.
In February, the high court ruled on our behalf in a case where a Utah city accepted a monument of the Ten Commandments and displayed it in a city park. In Pleasant Grove City v. Summum, the high court unanimously concluded that the city could constitutionally display the monument – and reject another – clearing the way for governments to accept permanent monuments of their choosing in public parks.
While it is difficult to predict the outcome of any First Amendment case of this nature, I believe the court will conclude that the war memorial cross can stay.
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