From the Washington Post’s account of the oral argument in a case about whether a 6.5′ cross built on land in the Mojave National Preserve by the VFW in the 1930s to honor the dead of WWI violates the First Amendment:
[Scalia] had a testy exchange with Eliasberg about whether the symbol — which the lawyer said “signifies that Jesus is the son of God and died to redeem mankind for our sins” — could also double as a secular marker for the war dead of all faiths.
Scalia said the cross was the “common symbol of the resting place of the dead,” and asked, “What would you have them erect . . . some conglomerate of a cross, a Star of David, and you know, a Muslim half-moon and star?”
Eliasberg drew laughter from the crowded courtroom when he responded, “I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.”
Scalia did not laugh. “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. I think that’s an outrageous conclusion,” he said.
However, I concur with Justice Alito’s suggestion at the oral argument that Congress has solved the First Amendment problem by transferring the piece of land on which the cross sits to the VFW:
“Isn’t the sensible interpretation” of the lower court’s ruling that “it was prohibiting the government from permitting the display of the cross on government property, and not on private property that happens to be within the Mojave National Preserve?” Alito asked Eliasberg.
In fact, as a matter of general principle, I think not only this problem but many other problems could be solved by transferring all the “public” property we can from the government to unowned commons or to private usufruct.