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Supreme Court 2009-2010 Term: (1) Salazar v. Buono – Cross on Public Land

by Professor Will Huhn on October 26, 2009

in Constitutional Law,Establishment Clause,Wilson Huhn

     On October 7 the Supreme Court heard oral argument in the case of Salazar v. Buono, which involves the constitutionality of a cross that had been erected on public land.  More below.

     The Mojave National Preserve in California is a vast federal park, roughly fifty miles square, located in eastern California.  In 1934 a World War I veteran erected a large cross as a war memorial on a cliff in the Preserve.  In 1994 the land was transferred from the Bureau of Land Management to the National Park Service, and the Park Service has continued to maintain the cross.  

     In 2002, a federal district court ruled that the maintenance of the cross on public land was a violation of the Constitution, and it prohibited the government from permanently displaying the cross.  Congress responded to the lawsuit by declaring the cross to be a National Memorial (like the Washington Monument or Mount Rushmore), and in 2004 Congress enacted legislation transfering about an acre of land around the cross to the VFW in return for five acres of privately owned land elsewhere in the Preserve.  The government contends that after the land swap the VFW could continue to display the cross   The district court and the Ninth Circuit Court of Appeals ruled that this land swap would not satisfy the injunction, and that it would still be unconstitutional to display the cross within the federal park.

     The legal standard that governs Establishment Clause cases is very simple.  The government may not endorse religion.  This standard has two prongs.  The government may not intend to endorse religion, and the primary effect of the government's action must not be to endorse religion.  But as this case demonstrates these straighforward rules are often difficult to apply.  Here are some of the perplexing constitutional questions that this case raises:

1.  At the time that the cross was erected in 1934, it may have seemed appropriate to many people to use only a Christian symbol to honor the war dead.  I remember sectarian prayers being used in public settings when I was a child in the 1950s.  Today, I don't think that anyone including the VFW would consider it appropriate to build a war memorial using only Christian symbols, any more than it would be appropriate to open or close public ceremonies with prayers in the name of Jesus Christ, rather than in a more ecumenical spirit.  Should we evaluate possible violations of the Establishment Clause in light of practices that were acceptable in 1787 when the Constitution was written, 1868 when the Fourteenth Amendment was adopted, at the time that the particular symbol was erected (in this case, 1934) – or under the standards that would be acceptable today, when we have a different understanding of what it means for the government to be "neutral" with respect to religion?

2.  This particular monument is important to local veterans.  Many veterans moved to the region to recuperate from wounds, and appreciate the existence of a war memorial.  The cross is also used by local congregations on Easter for sunrise services.  Do these facts indicate that the cross has a secular purpose and effect, or that the purpose or effect of the cross is religious in nature?

3.  Soon after the property was transferred to the National Park Service a Bhuddist group asked that Bhuddist shrine be added to the site, but the government refused the request.  Does that fact properly bear on analyzing the government's purpose in maintaining the cross?

4.  Finally, what about the government's proposed solution in this case?  May the government cure a constitutional violation caused by a religious sybmol on government land by giving away a small parcel of land containing the symbol to a private group that it expects is going to maintain the symbol in place?

    The case was argued before the Supreme Court on October 7.  During oral argument there was a good deal of discussion regarding the procedural posture of the case – whether the precise issue under review relates to the constitutionality of the trial court's entry of an injunction or the court's enforcement of its injunction.  That distinction matters because it changes the standard of review from "de novo" to "abuse of discretion," which would make it more difficult to reverse the trial court's decision.  There was also some quarreling about whether the government could still contest Mr. Buono's "standing" to challenge the constitutionality of the cross, or if the government had waived that argument by failing to appeal the entry of the original judgment in 2002.  After several minutes of wrangling over these procedural issues, the Chief Justice said to Soliciter General Elena Kagan:

CHIEF JUSTICE ROBERTS: Before we get -before your time expires, we would like to spend a couple of minutes on the merits.

(Laughter.)

     Justice Ginsburg posed several penetrating questions.  Early on, she asked:

JUSTICE GINSBURG: General Kagan, just as a factual matter, is there any other national memorial that consists of a solitary cross, just that one symbol and no other?

     The answer, of course, was no.

     Ginsburg also asked whether the VFW could take down the cross under the terms of the land swap, and in light of the fact that the cross is now a national memorial:

JUSTICE GINSBURG: Could they then substitute whatever other memorial they chose? … Or would there have to be some government approval?

     Soliciter General Kagan answered that the under the terms of the land swap the VFW has to maintain some kind of war memorial on the site.  She thought that the VFW could remove the cross and substitute some other form of war memorial without government permission, although she conceded that there was "a little bit of a dispute" on this point.

     Chief Justice Roberts asked how far the government can go in "swapping land" like this:

CHIEF JUSTICE ROBERTS: What if the government sold simply one square foot, or whatever the area that the base of the cross is — is resting on the ground? Would your argument be the same?

     Soliciter General Kagan admitted that there were limits to how far the government could go in this regard – that the government must have a secular purpose for the land swap, and that it must not appear that the religious symbol was still on government land. 

     Justice Sotomayor asked Peter Eliasburg, the A.C.L.U. attorney for Mr. Buono, the person who challenged the constitutionality of the cross and the land transfer, whether it would be a violation of the Constitution for one of the private landowners in the park to put up a similar cross on private property.  Eliasburg admitted that private landowners in the park could display such a cross, but he contended that this case was different because the government had intentionally transferred the land to the VFW for the purpose of keeping the cross in place. 

     Justice Scalia indicated to Attorney Eliasburg that he thought that the symbol of the cross adequately represents all war dead, regardless of their religion:

JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn't seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.

(Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.

MR. ELIASBERG: Well, my — the point of my — point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross. This cross can't honor us because it is a religious symbol of another religion.

     Eliasburg also was asked whether similar large crosses in Arlington Cemetary represented an "establishment of religion."  He responded that Arlington Cemetary was different because there are so many different religious symbols that adorn the graves of the fallen soldiers there, and that no-one could reasonably draw the conclusion that the government was singling out any single religion for honor.

     Near the end of the oral argument Chief Justice Roberts asked a question about the origin of this particular cross:

CHIEF JUSTICE ROBERTS: Counsel, this probably doesn't have anything to do with anything, but I'm just kind of curious, why is this cross put up -you know, in the middle of nowhere?

(Laughter. )

MR. ELIASBERG: Because the man who originally put up the cross — not this one, because it has been replaced a number of times, but the man who put up this particular cross, I believe was a homesteader in the area when the land was owned by the Bureau of Land Management, and I believe was a miner on the land. I hope that is correct historically.

     The Court's decision in this case could clarify some significant questions that arise under the Establishment Clause when religious symbols are placed on public land.

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