WASHINGTON — A Supreme Court argument on Wednesday about the fate of a cross in a remote part of the Mojave National Preserve in southeastern California largely avoided the most interesting question in the case: whether the First Amendment’s ban on government establishment of religion is violated by the display of a cross as a war memorial.
The cross in the desert was erected in the 1930s by the Veterans of Foreign Wars to honor fallen service members. Ten years ago, Frank Buono, a retired employee of the National Park Service, objected to the cross, saying it violated the establishment clause.
In the intervening decade, Congress and the courts have engaged in a legal tug of war. Congress passed measures forbidding removal of the cross, designating it as a national memorial and, finally, ordering the land under the cross to be transferred to private hands. Federal courts in California have insisted that the cross may not be displayed.
At Wednesday’s argument, only Justice Antonin Scalia appeared inclined to reach the establishment clause question.
Other justices were interested in the narrower issue of whether the land transfer would be proper.
Still others asked whether Mr. Buono had suffered an injury concrete and direct enough to give him standing to sue. Mr. Buono, who is a Roman Catholic, has said he objects to the display of any permanent religious symbol on government land.
Most of the argument in the case, Salazar v. Buono, No. 08-472, concerned the tangled history of Mr. Buono’s lawsuit. A federal judge in California in 2002 ordered the government to stop displaying the cross, and the United States Court of Appeals for the Ninth Circuit affirmed that decision in 2004. The government chose not to appeal it to the Supreme Court.
The case before the court arose from a second round of litigation concerning whether the law transferring the land under the cross violated the original order. Much of the argument concerned which issues were still before the court.
The question of the meaning of a cross in the context of a war memorial did give rise to one heated exchange, between Justice Scalia and Peter J. Eliasberg, a lawyer for Mr. Buono with the American Civil Liberties Union Foundation of Southern California.
Mr. Eliasberg said many Jewish war veterans would not wish 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 Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.”
“What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”
Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom.
Justice Scalia grew visibly 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.”
There was a second testy exchange, this one between Mr. Eliasberg and Chief Justice John G. Roberts Jr. Mr. Eliasberg said the veterans’ organization was unlikely ever to tear down the cross if the transfer called for by Congress went through, citing a plaque that Congress ordered to accompany the cross.
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.
Mr. Eliasberg apologized and said he had answered in the context of the question of whether the veterans’ group would “feel constrained to keep the cross up” in light of a plaque referring to a cross.
“The context of my question,” Chief Justice Roberts shot back, “was, ‘What does the plaque say?’ ”
Mr. Eliasberg apologized some more, saying he had not meant to mislead the court.
