Academic

The Coming Term of the Supreme Court: Salazar v. Buono

By Calvin Massey

I figure it's time to preview some of the important cases that will be heard by the Supreme Court in the coming term.  First up, in no particular order, is Salazar v. Buono, 08-472.  About 70 years ago a veterans group erected a cross, with government permission, on federal Park Service land in California's Mojave Desert, to memorialize American war dead.  Over time the cross was rebuilt and became the semi-permanent five foot tall steel structure that now exists.  About ten years ago a Utah man wanted to erect a Buddhist shrine near the cross.  The Park Service denied the request.  Meanwhile, Frank Buono, a retired Park Service employee, had brought suit, alleging that the cross was a prohibited establishment of religion.  After a district court had agreed with Buono, Congress enacted legislation approving a swap of the acre and a half cross site for five acres of other desert land owned by a private veterans' group, and designating the now private site as a memorial to the US war dead of WWI.  The swap occurred.  Later, Congress appropriated a small sum to erect a plaque by the cross identifying it as a war memorial.  Here's a Washington Post article providing some background.  

The Supreme Court will hear arguments in the first week of its term.  Two questions are presented by the cert petition: 1) Does Buono have standing?  2) Assuming standing, did the Ninth Circuit err "in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands?'

Buono is a Roman Catholic who states he has no objection to the cross -- indeed, he embraces it as a key symbol of his faith.  He objects to the Park Service's failure to accommodate other religious imagery and he objects to the government's alleged failure to adhere to the Constitution.  Both arguments for standing are weak.  Buono is not seeking to erect additional imagery; he has no personal particularized injury in fact  Even if he were seeking to place another religious symbol on the site, on the merits last term's Pleasant Grove decision eliminates any claim that the site (even if deemed to be publicly owned) is a public forum and that the government must accommodate other symbolic speakers.  The alternative standing ground is a generalized grievance shared in common by all citizens.  One may disagree with Schlesinger and Richardson, which established the absence of injury in fact of such claims, but they stand as a considerable obstacle.  Of course, the application of the generalized grievance doctrine in establishment clause cases makes it harder to challenge such displays, but that is a fault of the doctrine and is not specific to establishment clause cases.  Perhaps Buono has taxpayer standing to challenge the appropriation of funds to erect the plaque that clarifies the intended message of the cross. 

On the merits, the question becomes whether the land transfer and plaque operate to cure any pre-existing violation or reveal, as in McCreary County,  a forbidden purpose to aid religion.  The Court may well conclude that any endorsement of religion that would be apprehended by the well-informed objective observer has been repudiated by these actions.  Or, it might conclude that the present state of the cross would not convey to that mythical observer any endorsement of religion.  To uphold the lower courts the Court would need to find standing and then conclude that the chain of events proves that the government's purpose was to aid religion.  That was the logic of McCreary, where Justice O'Connor provided the fifth vote.  But it's just as  plausible to read these events as a desire to preserve a long-standing war memorial. Three of the four McCreary dissenters are still on the Court (Scalia, Kennedy, and Thomas) and Rehnquist has been replaced by Roberts.  Alito has replaced O'Connor.  Moreover, applying one of Breyer's rationales for joining the judgment in Van Orden -- it's been around for a long time and hasn't aroused any controversy -- it's not impossible to see this as a 6-3 reversal on the merits, even if the Court finds standing to exist, which is none too certain.  Prediction:  The Ninth Circuit gets reversed, but I won't say on which ground.  

Full post as published by The Faculty Lounge on September 28, 2009 (boomark / email).