Legal Commentary

Cross Memorials on Government Land

By Eugene Volokh

A question raised by Prof. Mark Scarberry on a discussion list I?m on, and mentioned in some of the briefs in the Salazar v. Buono Sunrise Rock cross case pending before the Court right now. These two crosses stand in Arlington Cemetery, and were put up in the 1920s through the efforts of the Canadian government and the Argonne Unit American Womens Legion, respectively.

I?m not sure whether these crosses were constructed entirely with private money, but they certainly stand on government land, and I suspect that they are maintained with government money. Likewise, the Sunrise Rock cross was put up as a war memorial in 1934 by the Veterans of Foreign Wars on government land. (The government recently sold the land to the VFW, but the VFW was selected precisely because it would maintain the cross, so it?s not clear that this cures whatever Establishment Clause problem they may have been.)

The Arlington crosses differ from the Sunrise Rock cross in that they clearly stand in a cemetery, and thus are more likely to be instantly seen as war memorials. On the other hand, presumably anyone who knows that the Sunrise Rock cross was originally on federal land ? according to the government?s brief, ?Approximately 86,000 acres in the Preserve are privately owned, and those private lands are intermingled with public ones? ? would probably also know its memorial significance.

If you think that the government has a First Amendment obligation to dispose of the Sunrise Rock cross (and not just by arranging a special sale to the VFW), should the government also be obligated by the First Amendment to remove the crosses at Arlington Cemetery? If not, why not?

Full post as published by The Volokh Conspiracy on April 23, 2010 (boomark / email).