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you just mean they have authority to regulate the land?

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MR. ELIASBERG:

That's correct.

But that's

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the way the statute is written, under Federal

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jurisdiction, so I believe that those two terms --

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CHIEF JUSTICE ROBERTS:

Well, I suppose they

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have jurisdiction to regulate a lot of -- lot of land

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that they don't own.

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MR. ELIASBERG:

Well I think that in this

case when the government is actually -- there's quite a

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bit of case law -- we set forth some in our brief --

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where they talk about the government's power over land

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that's within a national preserve, so I do think that

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the criminal statutes may very well apply.

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It certainly would be a barrier to the VFW's

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thinking, well, no risk to us if we tear this cross

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down.

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believe one of the Justices and I don't remember

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which -- the government has been required to go back and

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put up a plaque that says:

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of the foreign war dead.

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believe for the VFW --

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In addition, the government is required, as I

This cross erected in honor

It would be very odd indeed, I

CHIEF JUSTICE ROBERTS:

What else -- what

else does the plaque say. MR. ELIASBERG:

The plaque says:

"This

cross" -- in big letters -- "erected in honor of the 37 Alderson Reporting Company

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dead of foreign wars."

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I think it would be very --

CHIEF JUSTICE ROBERTS:

And that's it?

Nothing else?

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MR. ELIASBERG:

Nothing else.

I think it

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would be very odd indeed for the VFW to feel that it was

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free to take down the cross and put up, for example, a

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statues of a soldier which would honor all of the people

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who fought for America in World War I, not just

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Christians, and say:

Well, we were free to do that

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because even though there's the sign that says, this

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cross is designated to honor all the --

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JUSTICE SCALIA:

The cross doesn't honor

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non-Christians who fought in the war?

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that --

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MR. ELIASBERG:

Is that -- is

I believe that's actually

correct.

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JUSTICE SCALIA:

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MR. ELIASBERG:

Where does it say that? It doesn't say that, but a

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cross is the predominant symbol of Christianity and it

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signifies that Jesus is the son of God and died to

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redeem mankind for our sins, and I believe that's why

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the Jewish war veterans --

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JUSTICE SCALIA:

It's erected as a war

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memorial.

I assume it is erected in honor of all of the

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war dead.

It's the -- the cross is the -- is the most 38 Alderson Reporting Company

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common symbol of -- of -- of the resting place of the

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dead, and it doesn't seem to me -- what would you have

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them erect?

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Star of David, and you know, a Moslem half moon and

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star?

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A cross -- some conglomerate of a cross, a

MR. ELIASBERG:

Well, Justice Scalia, if I

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may go to your first point.

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common symbol of the resting place of Christians.

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have been in Jewish cemeteries.

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The cross is the most I

There is never a cross

on a tombstone of a Jew.

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(Laughter.)

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MR. ELIASBERG:

So it is the most common

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symbol to honor Christians.

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JUSTICE SCALIA:

I don't think you can leap

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from that to the conclusion that the only war dead that

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that cross honors are the Christian war dead.

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that's an outrageous conclusion.

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MR. ELIASBERG:

I think

Well, my -- the point of

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my -- point here is to say that there is a reason the

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Jewish war veterans came in and said we don't feel

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honored by this cross.

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because it is a religious symbol of another religion.

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This cross can't honor us

CHIEF JUSTICE ROBERTS: Am I wrong?

Can I get back to

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your plaque question?

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government told us the plaque reads: 39 Alderson Reporting Company

I think the "The cross erected

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in memory the dead of all wars, erected 1934 by members

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of Veterans of Foreign Wars, Death Valley Post 2884."

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MR. ELIASBERG: Justice, and I apologize.

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That is correct, Mr. Chief I forgot --

CHIEF JUSTICE ROBERTS:

That's a big

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difference.

I mean, the whole point is that the plaque

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tells you, this is not a government memorial, government

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structure.

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Foreign Wars, Death Valley Post 2884.

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MR. ELIASBERG:

It was put up by members of the Veterans of

Mr. Chief Justice, the

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context of your question was would VFW feel constrained

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to keep the cross up?

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And my point was --

CHIEF JUSTICE ROBERTS:

The context of my

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question was what does the plaque say?

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MR. ELIASBERG:

Well -- I -- I apologize for

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not giving the full text, that was not my intention to

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-- to mislead the Court or to you, Mr. Chief Justice.

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CHIEF JUSTICE ROBERTS:

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MR. ELIASBERG:

All right.

My only point is that in

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that scenario, because did I believe we were talking

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about, is the VFW free to do this, and I was pointing to

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the criminal statute that I said I believe said that

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they couldn't -- wouldn't feel free to take this down.

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But second of all, that it would be odd indeed for them

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to take it down when there is a big plaque that says 40 Alderson Reporting Company