Monday, February 23, 2009

Salazar v. Buono (updated)

Today, the Supreme Court agreed to hear a church-state case, Salazar v. Buono, the first such case under the current make-up of the Court. The Associated Baptist Press reports:
The case involves a cross -- a predecessor of which was first erected as a World War I memorial in 1934 -- standing on government-owned land in California’s Mojave National Preserve.

The current version was built of painted metal pipes by a local resident in 1998. The next year the National Park Service, which oversees the land, denied an application to build a Buddhist shrine near the cross.

The agency studied the history of the monument and, determining that it did not qualify as a historic landmark, announced plans to remove it. Congress intervened with a series of amendments to spending bills attempting to preserve the cross.

In 2001 Frank Buono, a former Park Service employee who once worked at the preserve, filed suit with the help of the American Civil Liberties Union. They claimed that the cross violated the Constitution’s ban on government establishment of religion.
It seems as though the issue here is the legislative efforts to give the land in which the cross stands to the Veterans of Foreign Wars, in order to claim that the cross doesn't stand on government property, and therefore it isn't government establishment of Christianity. The 9th Circuit Court ruled against the law ordering the exchange of government land with the VFW:
“We previously held that the presence of the cross in the preserve violates the Establishment Clause [of the First Amendment], wrote Judge Margaret McKeown in that decision. “We also concluded that a reasonable observer aware of the history of the cross would know of the government’s attempts to preserve it and the denial of access to other religious symbols.”
Moreover:
“Under the statutory dictates and terms that presently stand, carving out a tiny parcel of property in the midst of this vast preserve -- like a donut hole with the cross atop it -- will do nothing to minimize the impermissible governmental endorsement.”
With the retirement of moderate Sandra Day O'Connor and the ensuing appointment of conservative Samuel Alito, a lot of people will be interested to see how this case will be adjudicated.

Update: David Savage of the Los Angelos Times has this write-up on the case.

Update II: Great debate on the case at Beliefnet's Lynn v. Sekulow. Other coverage at the Philadelphia Inquirer and Blog from the Capital (1 , 2, and 3).

Update III: Reader aznew emailed me the link to this analysis on the case from the First Amendment Center.

5 comments:

Darren Staley said...

This is the kind of case that drives me nuts. Personally, I could care less about the cross being there. Legally, they should take it down.

That said, hot off my Oscar predictions, here is my prediction in this case:

Keep the Cross-
Roberts
Alito
Scalia
Thomas

Remove the Cross (or kick back)-
Kennedy
Stevens
Souter
Ginsburg
Breyer

My personal message to the right: stop putting up crosses. My personal message to the left: stop trying to take down crosses.

Matt F. said...

I would agree with Darren's position, except from what I have studied, it seems that Kennedy tends to go the other way on these cases, so I would put him in the keep the cross version. The big change in the court recently is that O'Connor used to be the swing vote, and Kennedy usually sided with the conservatives. Now Kennedy is the swing vote, so the court can be expected to move right, as it has in the last few years. I also agree with your personal messages, as long as they don't try to put up religious imagery in public schools or courthouses.

Kent H said...

The ratio of votes sounds about right. But I think the S.C. will rule for the cross -- if for no other reason, to overturn the 9th circuit which has the highest turnover rate of all circuits.
(That's a joke by the way.)

But on the legal question, I must admit, I consider these arguments most ridiculous. From all the reading a research I've done, the establishment clause was intended to keep the national government from establishing one sect of religion which was granted exclusive position (states had official relgions well into the 1800's).
Having a cross on public property does not in any way establish a sect or religion above another -- but (and you'll be surprised by this) I don't think there is a legal justification for denying the Buddhist display on the same property either.

Just my take.
Kent

Drew said...

Darren, along with Matt, I totally believe that Kennedy is going to vote with the conservatives on this one, forming a 5-4 majority. See how he voted on the two Ten Commandment cases a couple years ago: McCreary County v. ACLU of Kentucky, and Van Orden v. Perry.

I'm not a constitutional scholar, but I don't see how it is constitutional via the Lemon test:
1. The government's action must have a secular legislative purpose;
2. The government's action must not have the primary effect of either advancing or inhibiting religion;
3. The government's action must not result in an "excessive government entanglement" with religion.

If any of these prongs are violated, the law is unconstitutional. The way I see it, #1, maybe (if they buy that the cross is a war memorial). #2, who knows. But there is a big, big problem with #3, given the legislative entanglement to give one acre in a federal reserve to private citizens. But, I think, given the current make-up of the court, that I am going to lose this call.

Kent H said...

The 1971 Lemon v. Kurtzman has been a hugely debated constitutional quandary which not one of the founders could have stood up against with action or word. The attempt in recent years has been to replace the Lemon test with the Coercion test which emphasizes (as the founding generation did) the limiting of government from coercing individuals in their free exercise of religion and denude the extremely open-ended "excessive entanglement" prong.
Just a conservative's take.