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Official - Subject to Final Review
you just mean they have authority to regulate the land?MR. ELIASBERG: That's correct. But that'sthe way the statute is written, under Federaljurisdiction, so I believe that those two terms --CHIEF JUSTICE ROBERTS: Well, I suppose theyhave jurisdiction to regulate a lot of -- lot of landthat they don't own.MR. ELIASBERG: Well I think that in thiscase when the government is actually -- there's quite abit of case law -- we set forth some in our brief --where they talk about the government's power over landthat's within a national preserve, so I do think thatthe criminal statutes may very well apply.It certainly would be a barrier to the VFW'sthinking, well, no risk to us if we tear this crossdown.In addition, the government is required, as Ibelieve one of the Justices and I don't rememberwhich -- the government has been required to go back andput up a plaque that says: This cross erected in honorof the foreign war dead. It would be very odd indeed, Ibelieve for the VFW --CHIEF JUSTICE ROBERTS: What else -- whatelse does the plaque say.MR. ELIASBERG: The plaque says: "Thiscross" -- in big letters -- "erected in honor of the37
Alderson Reporting Company
 
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dead of foreign wars." I think it would be very --CHIEF JUSTICE ROBERTS: And that's it?Nothing else?MR. ELIASBERG: Nothing else. I think itwould be very odd indeed for the VFW to feel that it wasfree to take down the cross and put up, for example, astatues of a soldier which would honor all of the peoplewho fought for America in World War I, not justChristians, and say: Well, we were free to do thatbecause even though there's the sign that says, thiscross is designated to honor all the --JUSTICE SCALIA: The cross doesn't honornon-Christians who fought in the war? Is that -- isthat --MR. ELIASBERG: I believe that's actuallycorrect.JUSTICE SCALIA: Where does it say that?MR. ELIASBERG: It doesn't say that, but across is the predominant symbol of Christianity and itsignifies that Jesus is the son of God and died toredeem mankind for our sins, and I believe that's whythe Jewish war veterans --JUSTICE SCALIA: It's erected as a warmemorial.I assume it is erected in honor of all of thewar dead. It's the -- the cross is the -- is the most38
Alderson Reporting Company
 
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common symbol of -- of -- of the resting place of thedead, and it doesn't seem to me -- what would you havethem erect? A cross -- some conglomerate of a cross, aStar of David, and you know, a Moslem half moon andstar?MR. ELIASBERG: Well, Justice Scalia, if Imay go to your first point. The cross is the mostcommon symbol of the resting place of Christians. Ihave been in Jewish cemeteries. There is never a crosson a tombstone of a Jew.(Laughter.)MR. ELIASBERG: So it is the most commonsymbol to honor Christians.JUSTICE SCALIA: I don't think you can leapfrom that to the conclusion that the only war dead thatthat cross honors are the Christian war dead. I thinkthat's an outrageous conclusion.MR. ELIASBERG: Well, my -- the point ofmy -- point here is to say that there is a reason theJewish war veterans came in and said we don't feelhonored by this cross. This cross can't honor usbecause it is a religious symbol of another religion.CHIEF JUSTICE ROBERTS: Can I get back toyour plaque question? Am I wrong? I think thegovernment told us the plaque reads: "The cross erected39
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