Yesterday, in a highly split decision
with six separate opinions, the United States Supreme Court overturned a Ninth Circuit ruling in Salazar v. Buono
. The issue at hand? Whether the location of the Mojave Memorial Cross
represented an unconstitutional endorsement of religion. The Ninth Circuit decided that it did, but its ruling has been called into question by the high court on several levels.
First erected in 1934, the Mojave Cross was intended as a tribute to soldiers killed in war. In 1994, the land on which it stood became a federally-owned part of the Mojave National Preserve
. Five years later Frank Buono, a former employee of the National Parks Service brought the cross to the attention of the ACLU as a possible form of government endorsement of religion.
The NPS eventually agreed to remove it, until California Representative and Captain Oveur look-alike Jerry Lewis
added language to an appropriations bill denying federal funds for the removal of the cross.
The ACLU filed suit in 2001, and in July 2002 a U.S. District Court Judge ruled that the cross did, indeed, represent endorsement of religion. However, Rep. Lewis then arranged a transfer, ceding the acre of land containing the cross to the VFW in exchange for five acres donated elsewhere by a private owner.
The ACLU complained that the land transfer was unconstitutional on establishment grounds, and in 2004 the Ninth Circuit agreed, declaring that the transfer "would leave a little donut hole of land with a cross in the midst of a vast federal preserve"
Yesterday the Supreme Court overturned
the Ninth Circuit. Justice Kennedy was joined by Chief Justice Roberts and Justice Alito in hilighting the memorial purpose of the cross: "A Latin cross is not merely a reaffirmation of Christian beliefs... It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies would be compounded if the fallen are forgotten." He defended the land transfer as part of a "framework and policy of accomodation for a symbol that... has complex meaning beyond the expression of religious views."
Meanwhile, Justices Scalia and Thomas also reversed the lower court, but on different grounds. Scalia, writing for that faction, found that Buono did not have standing to challenge the land transfer law. The original injunction, Scalia says, was against display of the cross on federal land. By seeking to challenge the transfer of that land to a private owner, Buono was not requesting "enforcement of the original injunction but expansion of it."
Justices Stevens, Ginsburg, and Sotomayor dissented. Stevens wrote that he "certainly agree[s] that the Nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message." Without judging the constitutional merits of the land transfer itself, he agreed with the District Court that "that the transfer was a means of 'permitting'-indeed, encouraging-the display of the cross."
Justice Breyer, writing separately, posed a simple question: did the land transfer violate the language of the injunction, and "permi[t] the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve"? He backed the District Court in claiming it did.
The case has received some level of attention as the first Establishment Clause
case to come before the court under Chief Justice Roberts. The plurality's assertions that a cross did not have primarily Christian connotations has been met with incredulity
, both in heated exchanges during the arguments and in analysis after the fact. Nevertheless, Jess Bravin of the Wall Street Journal notes
that the court "avoided making any 'sweeping pronouncements' on the line between church and state." She noted Justice Kennedy's hedging language emphasizing the "highly fact-specific nature" of the case, making it "unsuited for announcing categorical rules".
has a round-up.