In the course of arguing that a giant cross erected in the Mojave Desert in 1934 cannot be regarded as a specifically Christian symbol, Scalia told the court that, "The cross is the most common symbol of the resting place of the dead."
Actually, that's not all he said:
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?I'm no legal scholar, but I know a thing or two about gravestones. And Scalia is talking out of his ass on this one.
Scalia is arguing that the people who erected the giant cross as a war memorial in 1934 intended it to "honor all of the war dead." They could assume that a cross would stand for all the dead, regardless of religion, because they understood the cross as "the most common symbol of the resting place of the dead" in general and war dead in particular.
This might seem obvious to Scalia, but it shows very little understanding of the history of memorials and grave markers in America.
Mid-Atlantic and Southern states as well as in New England.
There are plenty of Christian symbols on 17th- and 18th-century American gravestones (peacocks, trumpets, Bible boobs, etc.), but crosses are rarely among them.
When Scalia envisons cross-marked graves, he may be thinking of WWII-era cemeteries like the Normandy American Cemetery and Memorial, where acres of crosses honor the American dead. Yet, the practice of erecting government-issued marble crosses would have been unknown to veterans in 1934. Before WWII, government-issue stones were simple tablets with slightly rounded tops (pointy tops for CSA). Union soldiers' government-issue gravestones were either undecorated or embellished with a shield-shaped indentation. Confederate soldiers' government-issue stones sometimes have fat little Southern Crosses of Honor, but I've never seen one with a Christian cross.
Spanish-American War were still being buried under plain or shield-decorated stones. Some WWI veterans received the new style of stone — a marble tablet with a tiny cross inscribed in a circle above the vital information. Since WWII, American soldiers' families have been able to choose from an ever-expanding catalogue of religious symbols for government gravestones.
My point is that the people who erected the cross in 1934 did not build it because it was a generic symbol that had been used to honor American dead since the days of William Bradford. They would have understood it as a specifically Christian icon. Justice Scalia's contention that the cross is "the most common symbol of the resting place of the dead" has nothing to do with history and everything to do with his biases as a Catholic who came of age after WWII. I guess I should not be surprised — Justice Scalia has long been a member of the "my nostalgia is an accurate representation of historical experience" school of history.
The ACLU's lawyer, Peter Eliasberg, had a nice little comeback for Scalia's stupidity.
Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.While Mr. Eliasberg scored some points and is mostly correct, I have seen Christian imagery on Jewish gravestones in Newport.