Peter Eliasberg will appear before the U.S. Supreme Court on Wednesday to argue Salazar v. Buono, an important First Amendment case concerning a cross erected by private citizens in California's Mojave National Preserve. Here are some of his thoughts on the eve of arguing the case before the nation's highest court.

Eliasberg is Manheim Family Attorney for First Amendment Rights for the ACLU/SC, as well as our managing attorney.

This is my first case in front of the U.S. Supreme Court. I've argued in front of the California Supreme Court, and also seven or eight times before the 9th Circuit. But you sense that this is an even higher level, so yes, I'm nervous.

There are a lot of different issues in this case, and it's very hard to know what the justices will focus on. Lower courts have already decided that the placement of the cross on federal property violates the Establishment Clause of the First Amendment, and the government did not ask the Court to review that decision. One of the issues to be considered by the justices now is whether that violation is meaningfully eradicated by the government's proposal to transfer ownership of the small patch of land on which the cross stands to a local veteran's group, even though the cross will remain designated a national memorial.

It's utterly clear that the government's proposal does not live up to its obligation not to favor any particular religion. The cross is unquestionably a sectarian religious symbol, signifying the divinity of Jesus. As a congressionally designated national memorial to World War I veterans ''' one of only 49 national memorials in the country ''' this cross would convey the message that the military values the sacrifices of Christian war dead over those of service members from other faith traditions. This would be true even if the property were to be transferred to private owners.

The cross's message would not be, as the memorial's defenders claim, one of commemoration for all war dead and veterans, or for all veterans of World War I. Thousands of Jews, Muslims, Buddhists and members of other faiths who have served their country with honor do not regard the cross as a '''universal symbol.' That's one reason the military allows soldiers and their families to choose which religious symbol to put on headstones in military cemeteries ''' a policy the ACLU staunchly supports, by the way.

Another issue the justices will consider is whether the plaintiff in the case, Frank Buono, a military veteran, former assistant superintendent of Mojave National Preserve and someone who visits the area of the preserve near the cross regularly, has standing to sue. And there's also an issue over whether the question of standing has even been properly presented to the court, since the government did not ask the Supreme Court to review the lower courts' ruling that Mr. Buono had standing when those decisions became final in 2004.

Clearly, Mr. Buono is directly affected. And anyone who is directly affected by government favoritism of one religion can and should be able to sue, if our constitutional freedom of religion is to mean anything. Otherwise, a Jewish student '''offended' by school-sponsored Christian prayers, for example, would have no legal recourse.

I've done a tremendous amount of preparatory work for this hearing in recent months. You always wonder, '''Is there some question I haven't thought of?' But by and large, I feel ready. I've done two moot courts at Harvard, one at NYU and one at Georgetown University. The moots are indispensable to preparation. They are a chance to test your arguments and how well you know them, but also to see what people who are smart think of them.

I drink decaf coffee, so tomorrow before I head to the court, I'll have a cup or two. There's really nothing you can do at the last minute before a major case like this except get yourself as grounded and relaxed as you can be, and try to keep your head clear.

An op-ed opinion piece, mistakenly identified as a Sacramento Bee editorial, rehashed misleading statements and made many more about our Mojave cross case, which will be argued before the U.S. Supreme Court on Oct. 7. Ramona Ripston, ACLU/SC Executive Director, responds.

Margaret A. Bengs rehashed misleading statements about the law and the American Civil Liberties Union's case concerning a cross in the Mojave National Preserve.

It's the government that has shown contempt for free speech, allowing private citizens onto federal land to erect a cross but preventing other private citizens from erecting a Buddhist memorial on the same site. And the ACLU doesn't argue that a land transfer in this case could never be constitutional - only that the proposed transfer has clearly been manipulated so that the cross will remain in exactly the same place.

Many Christians are offended by Bengs'argument that this particular cross is supposedly a nonreligious commemoration of war dead, rather than a symbol of the divinity of Jesus. And thousands of Jews, Muslims, Buddhists and members of other faiths who have served their country with honor do not regard the cross as a "universal symbol." That's one reason the military allows soldiers and their families to choose which religious symbol to put on headstones in military cemeteries - a position the ACLU staunchly supports.

Characterizing the plaintiff in the Mojave case as "hypersensitive" and without standing is likewise misguided. Someone who is directly affected by government favoritism of one religion can and should be able to sue if our constitutional freedom of religion is to mean anything. If the law were as Bengs' article suggests it should be, a Jewish student "offended" by school-sponsored Christian prayers would have no legal recourse.

The right of every American to practice his or her own religion (or no religion at all) is among the most fundamental of the freedoms guaranteed by the Bill of Rights. The American Civil Liberties Union's long history of working to ensure that religious liberty is protected goes back to the Scopes trial of 1925, long before other groups began to argue for religious freedom. The Free Exercise Clause of the First Amendment mandates that the government should not interfere with people's religious rights to believe and worship freely. The Establishment Clause of the First Amendment prohibits the government from playing favorites and supporting one religion over others, and from favoring religion over nonreligion. The ACLU has been involved in a long series of prominent cases under both the Establishment Clause and the Free Exercise Clause that have argued against government interference in the religious sphere.
Religion is pervasive in the United States - and it is constitutionally protected. The ACLU has long defended individuals, families and religious communities who wish to manifest their religion in public. Particularly when compared to other industrialized democracies, religion plays a prominent role in American public life. Churches, synagogues, mosques, temples, cathedrals and Gurdwaras are plainly visible in the public sphere, and their right to display religious symbols and to construct religious edifices is protected by the Constitution and by statutes. The ACLU has actively supported the right of people to preach their religion in public places and to go door-to-door to spread their religious messages. The Constitution properly protects the right of religious figures to preach their messages over the public airwaves. Religious books, magazines and newspapers are freely published and delivered through the U.S. Postal System. No other industrialized democracy has as much religion as does the United States.
Some people, however, mistakenly use the word "public" when they really mean "governmental." This can be seen, for example, with Ten Commandments monuments. The right of churches and families to erect such monuments on their own property is constitutionally protected, regardless of whether it is public or private and regardless of whether someone is offended or not. A Christian cross that is fully visible from a public sidewalk is constitutionally protected when placed in front of a church. But if that same cross were moved across the street and placed in front of city hall, it would violate the Constitution. The issue is not "religion" -- as the rhetoric misleadingly suggests -- but whether the government should be making decisions about whose sacred texts and symbols should be placed on government property and whose should be rejected.