Archive for the ‘SCOTUS’ Category

2010 SCOTUS: “Mojave Desert Latin Cross Case,” The Establishment Clause Case (That Wasn’t Really)

Tuesday, May 4th, 2010

The one thing that nearly all of the Justices agreed upon in the most recent church-state decision is that Ken L. Salazar, Secretary of the Interior et al. v. Frank Buono isn’t really an Establishment Clause case.  More critically, this may simply be confusing church-state decision which hints that some Justices may want to tinker with the various tests.

The Washington Post front page story described the plurality as a 5-4 decision wherein the “prevailing conservatives signal[ed] a broader openness to the idea that the Constitution does not require removal of religious symbols from public land.”

Justice Kennedy issued the Opinion (Alito and Roberts joined and wrote their own).   Justices Scalia and Thomas concurred in a disappointingly dry few pages.  Justice Stevens (with Ginsburg and Sotomayor) wrote a dissent as did Justice Breyer.  So right there, with a 5-4 split and a retiring justice, we have some speculation as to what may happen in future cases.

This Opinion, which advances our understanding of the Establishment Clause in little to no degree, takes up a lot of paper.  We’ll do our best to keep our analysis concise.

Facts: in 1934, the Veterans of Foreign Wars (VFW) put an eight foot cross on a rock out in the middle of the Mojave Desert in Southern California.  The purpose was to honor the fallen soldiers in WWI.  That cross sits on federal land.  Some people use the area for secular purposes (campground or remembrance of war heroes) while others use the area for sectarian purposes (Easter services).

A retired park ranger sued claiming the Christian cross violated the Establishment Clause.  He won at almost every turn.  However, Congress repeatedly stepped in to pass federal laws specifically directed at that one cross.  After winning the first injunction, the issue came down to whether  the Government could transfer the land to private ownership who would maintain it as a WWI memorial or risk ownership reverting back to the government.

The Opinion focuses fairly heavily on the underlying injunction however many of the other opining justices argue that this case is not an Establishment Clause challenge (i.e., can the government own land with a cross on it).  The fact that Congress “intervened” with statutes while this case was traveling up and down the federal court system, including the land-transfer statute at issue, complicates the true subject of the case.

Opinion (Kennedy/Roberts/Alito): the District Court applied the wrong standard in enjoining the government from implementing the land-transfer statute.  The trial court likewise “dismissed Congress’ motives as illicit” (more on this below) and “took insufficient account of the context… and reasons” for the  new law.

  • “Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote Christianity.”
  • “The land-transfer statute embodies Congress’ legislative judgment that this dispute [over the cross on public land]… has complex meaning beyond the expression of religious views.”
  • “The goal of avoiding government endorsement does not require eradication of all religious symbols in the public realm.”
  • “[The Establishment Clause]… leaves room to accommodate divergent values within a constitutionally permissible framework.”
  • “But a Latin cross is not merely a reaffirmation of Christian beliefs.”

Concur (Alito): agrees with Kennedy but would not remand for lower court to decide whether land-transfer statute violates injunction or the Establishment Clause since factual record is “sufficiently developed.”  Congress’ statute resolved a “delicate problem” in “the spirit of practical accommodation.”  Removal would be seen as disrespectful to the soldiers the cross meant to honor.  It might also appear hostile to religion rather than neutral.

  • “[A]t least until this litigation, it is likely that the cross was seen by more rattlesnakes than humans.”

Concur (Roberts): Buono’s counsel agreed that the government could take down the cross, sell the property, and not violate the law.  ”I do not see how it can make a difference for the Government to skip that empty ritual and… sell the land with the cross on it.”

Dissent (Scalia/Thomas):  Buono’s standing to challenge the existence of the cross is not before the Court however the  question whether he has standing to challenge the land-transfer statute is for the Court’s consideration.  ”He has failed to allege any actual or imminent injury.”  Nothing in the statute requires the would-be private owners to keep up a cross, only the memorial.

Dissent (Breyer): the non-Establishment Clause question of whether the trial court can find the (subsequently enacted) land-transfer statute is within the scope of the original injunction.

Dissent (Stevens/Ginsburg/Sotomayor): the transfer of the land by the Government to private ownership would still violate the Establishment Clause (and the injunction) because a “reasonable observer” would conclude that the Government endorsed the cross and the sole purpose of the transfer was to preserve its display.

  • “The Establishment Clause… prohibits government from specifying details upon which men and women who believe… are known to differ.”
  • “Particularly important to this analysis is that, although the transfer might remove the implicit endorsement that presence on public land signifies, [...] it would not change the fact that the Government has taken several explicit actions to endorse this cross.”
  • “Congress singled out that cross for special treatment and it affirmatively commanded that the  cross must remain.”
  • “Making a plain, unadorned Latin cross a war memorial does not make the cross secular.  It makes the war memorial sectarian.”
  • “The days of considering the cross itself as challenged under the Establishment Clause are over; it is settled that the Government is not permitted to endorse the cross.”
  • “If the purpose of the transfer was to keep the cross in place, what was the purpose of keeping the cross in place?”
  • “Moreover, the inference that Congress has exercised its institutional competence — or even its considered judgment — is significantly weaker in a case such as this, when the legislative action was buried in a defense appropriations bill and, so far as the record shows, undertaken without any deliberation whatsoever.”

Conclusion?  Well, not a lot, other than confirming  the ongoing frustration that the Court has  not clarified church-state issues or the test(s) it wishes to use.  This case, arguably, is judicial venting of frustrations on various sides with no real conclusion — to wit, even the parties are sent back down to the lower court for more litigating.

There is some concern raised that turning the cross into a secular, or even “complex,” image as a clever method to install it in the public square undermines its sectarian value (see “What That Cross in the Mojave Desert Symbolizes“).  There is also some concern (raised in the dissent) that we have no WWI memorial… other than this “plain” cross.  Other concerns arise as well.  None are likely resolved, in this decision, to anyone’s satisfaction.

Overview of U.S. Supreme Court’s Gun Law Case

Wednesday, March 3rd, 2010

The current news cycle is replete with coverage of US Supreme Court oral argument in the handgun ban case, McDonald v. Chicago.  The appeal arises from a Seventh Circuit opinion from June 2009.

Gun enthusiasts and opponents will likely find the actual pleadings and legal arguments less than exciting since the debate circles around whether the Privileges and Immunities (P&I) Clause of the U.S. Constitution applies, wholesale or selectively, to the Bill of Rights (P&I is the “comity” clause which says states cannot discriminate against citizens of other states when it comes to civil rights).

The 7th Circuit declined to apply the P&I clause since prior SCOTUS cases dating back to the late 1800′s (!) indicate otherwise, although the reason in those cases has since been “undermined.”

There’s more in the 7th Circuit decision about constitutional debates, stare decisis vs. whether cases can be “bypassed as fossils,” and other academic legal wranglings which likely will not stir the interest that the public gun debate, uh, musters.

For those interested in the pleadings (including over 30 amici briefs from groups as varied as Jews for the Preservation of Firearms and the Safari Club), visit the website.

If you are interested in scouring the 2008 D.C. gun case, District of Columbia v. Heller, for clues (it cites the 1800 cases in a footnote) or you are interested in seeing the procedural history of the Chicago case in the context of other post-Heller cases, Wikipedia has some fairly good coverage.

The prevailing media opinion is that the SCOTUS will apply the Second Amendment to the states and municipalities but may leave in place the right to regulate.  I’m guessing that the Court will save this opinion for the end of their term, since they often like to drop “big” decisions and then hightail it out of D.C. for the summer.

US Supreme Court Drops “F” Bombs (and No One Cares?)

Wednesday, April 29th, 2009

It is hard to imagine that a wordsmith like Justice Scalia can be handed such rich material such as a dispute over the FCC regulation of “F***” and “S***” — and so handily drop the ball by writing a boring Opinion.  Perhaps he felt it too easy.   Indeed, nearly every Justice chimed in with their own dissent or concurrence, with little interesting to say.   Aside from those of us looking for something purient or a zinger-rich opinion, purists will note there is nothing constitutional in these opinions.

In Federal Communications Commission (FCC) v. Fox Television Stations et al., the issue was whether “fleeting expletives” said by celebrities during award shows are indecent under the FCC standards.  Yes, we have Cher and Paris Hilton/Nicole Richie to blame for this.

"Have you ever tried to get cow shit out of a Prada purse" is not a constitutional issue

The FCC’s indecency ban dates back to George Carlin in the 1970′s.  We all know the story.  In 2004, the FCC said that nonliteral (expletive) use of the F-word and S-word could be actionably indecent — meanwhile, it let singer Bono off the hook for his F-bomb at an award show (it was used as an “intensifier rather than a literal descriptor”).  The “2004 order” specifically noted that the FCC was changing course from prior rulings and, henceforth, it was going to consider fleeting expletives sanctionable.  You’ve been warned.

We then undergo a bit of a time travel flip-flop.  Prior to the 2004 Order, two nitwit celebrities (Cher and Richie) drop their F and S bombs in a hostile and literal manner, respectively.  The FCC, in 2006, took action using the 2004 order.  Question for the courts, can the FCC change its mind on this issue in the manner it did?

Yes, as long as it acknowledges it is changing course and offers a reasonable basis for it.  The Court set out a few guidelines, but none are terribly interesting.  Bottom line, broadcasters will need to bleep bad words or have a damn good excuse why they missed it.

US Supreme Court 2009: Park Monuments and the “Recently Minted” Government Speech Doctrine

Thursday, February 26th, 2009

Since the Court agreed that certain Ten Commandment statues were permissable in municipal parks, it was only a matter of time for that First Amendment issue to be tested.  Oddly enough, the Court choose to testfire a rather new legal theory: government speech doctrine.

In Pleasant Grove City, Utah et al. v. Summum, a small municipality has a park with eleven privately-donated monuments, including a 10-Commandments monument.  A religious group, which isn’t even based in that city, wanted to donate its own monument with the “Seven Aphorisms of Summum.”  

To the  uninitiated, this Summum group believes Moses first got seven aphorisms from God but they were not understood; Moses went back to the Mount and returned with the more-easily understood Ten Commandments.  

The City declined the offer, claiming the proposed monument did not relate to the history of Pleasant Grove nor was it donated by a group with longstanding ties to the community.  Can the City do that, effectively choosing one religious speech over another?

Quick First Amendment primer: If the government engages in its own expressive conduct, there is no Free Speech application; that clause restricts government regulation but does not regulate the government’s own speech.  The government, however, is restricted by the Establishment Clause and is accountable to the voters.

The Court noted that permanent monuments on public property typically represents government speech, regardless whether the monument is state sponsored or privately donated.  Historically, government has exercised selectivity in picking and choosing its “monumental” speech.  

This is the basis for the government speech doctrine, which protects government when it selectively picks and  chooses it monuments.  It was acknowledged that parks likely can only accomodate a limited number of permanent monuments.  The message need not be singular and, instead, could change over time or even be ironic.  It is intrinsic that the government NOT be viewpoint neutral else it would have to brace itself for an influx of clutter from multiple, meaningless monuments.  Again, the government must still abide by the Establishment Clause and the ire of the voters.

While the majority opinion spins its wheels for is 11 pages, it is Justice Scalia and Thomas who cut to the nub of the case.  The City was a bit fearful of associating itself too much with the Ten Commandments, lest it trigger an Establishment Clause challenge.  Summum, sensing that, exploited that hesistation and argued that its proposed monument was not “government speech” since Pleasant Grove had not embraced the messgage of the competing monument.  Thus, Summum claimed that the City could not take advantage of the government speech doctrine since the City had distanced itself somewhat from the Ten Commandments monument.  Scalia and Thomas offered in dicta to avoid the issue coming back before the court that there would not be an Establishment Clause violation under these facts.

The Court is clearly uneasy with the (new) government speech doctrine, hence one majority opinion with FOUR concurrences.  In fact, the Justices stopped short of saying that the doctrine was outcome oriented.  It may take years but it will be interested to see this doctrine tested by more complicated fact patterns.

QUESTION: on the sidewalk along U.S. One, outside of the Lake Worth City Hall, is a short brick wall with the names of local houses of worship.  Is that protected government speech or an Establishment Clause violation?

U.S. Supreme Court: Police Can Mistakenly Arrest Someone and Still Convict on Evidence Obtained

Thursday, February 26th, 2009

The United States Supreme Court affirmed an Eleventh Circuit Court opinion today finding that police negligence which lead to the arrest of a person without probable cause or a valid warrant was not grounds to exclude the discovered gun and drugs.  In short, a person with a prior record who was mistakenly arrested will face felony charges based upon what he was carrying when wrongly arrested.

The Fourth Amendment to the Constitution protects people from unreasonable searches and seizures.  The Constitution does not provide any protection against the use of the improper search/seizure.  A judicially-created “exclusionary” rule, however, does exist — favoring both criminals and tv crime show writers.

In this case, an astute investigator learned that a known criminal was coming to the police station and asked the clerk to check if there were any warrants out for the known criminal’s arrest.  None were found in the county but the clerked called the neighboring county, which reported there was a felony warrant.  The defendant was arrested on that information.  Within minutes, it was established that the other county had a clerical error and there was no warrant.  But the police had already found a gun (our known criminal was a felon) and meth.  Criminal defense counsel sought to suppress/exclude the evidence since it was improperly obtained.

The High Court played a bit of a cat and mouse game as to whether there was a 4th Amendment violation; nonetheless, since the parties had agreed there was a violation, the question was whether the exclusionary rule applied.  If you watch a lot of tv, you would think it was automatically excluded.

Yanking us back to reality, Chief Justice Roberts wrote in  Bennie Dean Herring v. United States that the exclusionary rule “has been our last resort, not our first impulse.”  It is not an individual right and, instead, only applies when it results in some appreciable detterence of constitutional violations by the police.  The Court used the “objectively reasonable” standard (a good faith/knew or should have known approach) in evaluating the conduct here — which, admittedly, does seem free of any intentional misdoing by the police.

The dissent complained that there was not a sufficient rule in place to determine where/when exclusion would apply.

I’m not a criminal lawyer but the facts of this particular case seem extreme in terms of showing this was “simple negligence” in otherwise good faith law enforcement.  That said, this was a 5-4 decision.  As such, while the wording of the Opinion is quite strong, one might guess that muddier facts in future cases may yield the opposite outcome.

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