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

A federal appellate court in California today ruled that a lawsuit filed on behalf of immigrants who have been detained for more than six months without receiving bond hearings can go forward as a class action. The immigrants are represented by the ACLU of Southern California, the ACLU’s Immigrants’ Rights Project, the Stanford Law School Immigrants’ Rights Clinic and the law firm of Sidley Austin LLP.
"This is a huge victory for immigrants who have been held in prolonged, indefinite detention without the most basic element of due process - a hearing to determine if their detention is justified,” said Ahilan Arulanantham, director of immigrants’ rights and national security for the ACLU Southern California, who argued the case before the Ninth Circuit. “There have been many good decisions invalidating prolonged immigration detention in individual instances, but the government has not been following them in other cases. Because the court has allowed the case to go forward as a class action, many detainees – the overwhelming majority of whom lack legal representation – will be able to benefit from the court's final decision.”
The lawsuit, Rodriguez et al. v. Hayes et al., was originally filed in a federal district court in Los Angeles in May 2007 on behalf of Alejandro Rodriguez, an immigrant from Mexico who was detained more than three years pending completion of his removal proceedings, without ever receiving a bond hearing. In the lawsuit, Rodriquez asked for a hearing to determine if his prolonged detention was justified and to represent other similarly situated immigrants in the Central District of California. A district court in California ruled that it did not have jurisdiction to grant a class action. The ACLU appealed the case to the U.S. Court of Appeals for the Ninth Circuit in April, 2008.
The Ninth Circuit, disagreeing with the government’s claims, found that it had clear jurisdiction to allow the lawsuit to go forward as a class action and that a class action would provide a remedy for immigration detainees who are unrepresented. The court explained that without class certification, “many of the putative class members likely would not be able to adjudicate their claimed need of a bond hearing,” and that class treatment was “likely necessary to provide the remedy sought.”
On an average day, the U.S. Department of Homeland Security detains roughly 33,400 non-citizens in federal detention facilities and local jails across the country, resulting in more than a threefold increase in the detention population since just a decade ago. In the Central District of California alone, hundreds of detainees each year are subjected to prolonged immigration detention while they fight their immigration cases.
"Many individuals in immigration detention pose no danger or flight risk that requires them to be locked up," said Judy Rabinovitz, deputy director of the ACLU Immigrants’ Rights Project. "Yet they are deprived of their liberty, often for prolonged periods of time, without even a bond hearing to determine if such detention is justified. This violates due process, results in many individuals forfeiting meritorious claims, causes families financial and emotional hardship and is a huge drain on taxpayers' money."
“We’re hopeful that the Obama administration will now agree that people incarcerated for years should receive the basic due process protection of a hearing,” Rabinovitz added.
Over the past few years, the ACLU has filed multiple lawsuits on behalf of individual immigrants who have been held for prolonged periods of time while fighting their immigration cases, winning the release of more than a dozen individuals who were being unlawfully detained.
Lawyers on the case include Arulanantham and Peter Eliasberg of the ACLU of Southern California, Rabinovitz and Cecillia D. Wang of the ACLU Immigrants' Rights Project, Jayashri Srikantiah of the Stanford Law School Immigrants' Rights Clinic, and Steven A. Ellis, William Tran and Brian K. Washington of Sidley Austin LLP.
Image: Alejandro Rodriguez

The American Civil Liberties Union of Southern California has demanded that the Lancaster City Council immediately cease the unconstitutional and divisive practice of opening its meetings, as well as other government meetings in the city, with Christian prayers.
In a letter sent today to Mayor R. Rex Parris and all members of the City Council, the ACLU/SC urged the city to end the use of sectarian prayers that show favoritism to a single religion in public meetings, or face possible legal action. The demand letter was sent after the ACLU/SC received complaints from residents attending the meetings.
“The City Council is clearly showing bias toward one religion by leading council and planning meetings with Christian prayers,” said Peter Eliasberg, Manheim Family Attorney for First Amendment Rights at the ACLU/SC. “Public officials are not only alienating a large swath of the non-Christian constituents they represent, but they are also clearly violating one of the most basic principles of the Constitution – that government must not favor one religion over others.”
City officials regularly open public meetings with prayers in the name of Jesus, demonstrating favoritism toward Christianity.
The letter written by Eliasberg cites numerous cases in which the U.S. Supreme Court and lower courts that have ruled that the practice of opening meetings with sectarian prayers is unconstitutional. In 2002, the California Court of Appeal upheld a Superior Court ruling that concluded that a prayer given by the city of Burbank “in the name of Jesus Christ” violated the First Amendment. The court ordered the city to cease opening its meetings with sectarian prayers, and to inform anyone conducting a prayer that sectarian prayers are prohibited.
The city has until August 14 to respond to the letter.