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.