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Justices Speak on Public Display of the Cross, but Not Clearly

5 years ago
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The United States Supreme Court issued an opinion Wednesday morning on the topic of yet another case involving yet another public display of a "Latin cross." But the Justices didn't come close to speaking clearly or in great unison. There were no fewer than six separate opinions, concurrences and dissents spanning the ideological spectrum, a sign that the Court's First Amendment jurisprudence is in many cases still all over the map.

Oh, and despite what some commentators have assured us, the case is not nearly over. For now, the cross in question stays where it is, covered and unseen, while yet another round of review is dished out and served.

For now, the cross in question stays where it is, covered and unseen, while yet another round of review is dished out and served. The cross in question has rested on a rock outcropping (Sunrise Rock) in a remote section of the Mojave Desert -- on federal land -- since 1934, when it was placed there by private citizens to honor the nation's World War I casualties. In 2002, a retired Park Service employee named Frank Buono, who often visited the federal preserve in which the cross rested, filed suit seeking a declaration from the federal courts that a religious symbol on government land violated the First Amendment.

At first, Buono was successful in court. Both his trial judge and the 9th U.S. Circuit Court of Appeals agreed that "a reasonable observer would perceive a cross on federal land as a governmental endorsement of religion." The government did not appeal.

End of story, right?

Wrong. Congress got involved with a series of legislative actions designed to forbid the government from removing the cross, and to encourage people who wanted the cross to stay where it was.

The lawmakers designated the cross and its adjoining land as an ad hoc "national memorial." And then they simply transferred the parcel to a third-party, the Veterans of Foreign Wars, to get it out from under First Amendment doctrine. This prompted Buono to again go to court, this time seeking enforcement of his original injunction to block the congressionally-directed land transfer. And, again, the lower courts agreed with him.

The justices of the Supreme Court, however, did not. Furthest on the right in Salazar v. Buono was Justice Samuel Alito, who wrote that the congressional transfer should have been endorsed by the Court based upon a "sufficiently developed" "factual record" developed from eight long years of appellate litigation. Next came Justices Antonin Scalia and Clarence Thomas, both of whom agreed that Buono had no standing to bring his challenge to the land transfer at all because the lower courts had no business enjoining the Congress from making the transfer. All three agreed in the result, mind you.

Now let's head left. Justice John Paul Stevens, writing on a day that would mark his final oral argument after nearly 35 years on the bench, declared that the Supreme Court should not have sided with the Congress over its lower courts and their decisions in a dispute over the proper enforcement of injunction. Justices Sonia Sotomayor and Ruth Bader Ginsburg joined in the Stevens' dissent. But Stephen Breyer was even sharper with his point: the first court rulings which declared unconstitutional the cross's presence had amounted to legal precedent when no one appealed them. Why, he asked, were the Court's conservative members opening up that can of worms again?

Enter Chief Justice John G. Roberts and Justice Anthony Kennedy. They are solely responsible in this circumstance for an obvious compromise of a decision. Instead of heeding the right's call to end the dispute now by approving the land transfer, and instead of heeding the left's call to resolve the controversy by backing up the injunction, Kennedy and Company instead sent the case back down again to the trial court for yet another review using a new standard. In other words, the case now is back before the same judge who twice has ruled the cross violates the First Amendment.

Writing for himself, the Chief Justice and in part for Justice Alito, Justice Kennedy found that Buono indeed had standing to sue here. But then the Justice ruled that the lower court judge had erred by not appropriately deferring to the Congressional intervention. "The land transfer statute was a substantial change in circumstances bearing on the propriety of the requested relief," Justice Kennedy wrote.
In words sure to rumble around online for a while, Kennedy wrote: "But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people."

In the end, he argued that the lower court had failed to meet its obligation to consider "less drastic relief than complete invalidation of the statute" (granting the land transfer) and he ordered the lower court to conduct "a proper inquiry into the continued necessity for injunctive relief in light of the statute."

The language of the ruling, as you can see, is quite subtle. The message is not. Five justices of the Supreme Court want that cross on Sunrise Rock. Congress wants that cross on Sunrise Rock. Sooner rather than later, or barring some dramatic shift in Court personnel or ideology, it's clear that cross is going to be allowed on stay on Sunrise Rock. Just don't expect any definitive announcement to that effect any time soon.
Filed Under: Supreme Court

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