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Tuesday, February 24, 2009

Salazar v. Buono...

So earlier today I mentioned the cert grant in Salazar v. Buono -- the Mojave Cross case.  It's going to be an interesting one, with difficult questions not just about the Establishment Clause, but about everything else -- from standing to the nature of the reversionary interest in property law to the courts' power to issue injunctions that impose costs on third parties.  There's a lot of messiness here, and potential for multiple fractures on the Court.  Below the fold I'll talk a little about the merits of the case; I hope to get to some of the other issues later.

Usually, in successful Establishment Clause display cases, the end result is that the government just takes the display down.  But here that didn't happen.  After the Mojave cross was declared unconstitutional (by Judge Kozinski, no less), Congress stepped in and passed a statute (16 U.S.C. § 410aaa-56), which essentially was a land exchange.  The VFW got the acre of land with the cross on it, and the government got 5 acres of land from a Mr. and Mrs. Henry Sandoz (I'm still figuring out who they are).  So in the middle of the federal Preserve, there's now this donut hole of private land with a cross on it.

I think the merits of this are straightforward, but that the standing part may create some trouble.  As to those merits, it's hard to see Congress's solution as properly curing the Establishment Clause problem.  Congress didn't just give the cross away to someone at random -- it chose the VFW because it wanted to keep the cross up.  (The SG's petition for certiorari plainly admits this; it says, on p. 19, that Congress "could have torn down the cross, but that could have been viewed as demonstrating hostility toward religion and dishonoring the memory of the service members who have long been memorialized on Sunrise Rock.")  And Congress put a reversionary clause in the statute so that Congress would repossess the land if anyone takes the cross down.  (Congress's continuing property-law interest in the land also raises a technical issue about whether, even now, it is still a "landowner" for EC purposes.)

Now the cross doesn't necessarily have to come down.  There are other possible solutions: the public forum (allowing everyone to put up what they want), the lottery (giving the property away at random to a private party), the market mechanism (selling the property to the highest bidder, although I have doubts about that one).  But this one was as far from neutral as it gets.

I'm thinking a good analogy here would be Santa Fe v. Doe.  In that case, with prayer by teachers and other government actors being unconstitutional, the Santa Fe school district arranged to have students take charge of deciding whether or not football games would be opened with prayer.  Divesting the religious exercise to private parties, Santa Fe argued, cured the Establishment Clause problem.  But the problem in Santa Fe is the problem here -- it wasn't a neutral divestment.  In Santa Fe, the district's prayer policy encouraged the students to give religious messages -- just as Congress's actions here encourage the cross to stay up.  (Btw, a number of courts in post-Santa Fe cases have held that neutral divestments do cure the EC problem -- so if a school's policy is to let the valedictorian give a speech and it happens to be religious, there's no EC problem, because the state isn't responsible for the religious aspects of the message.  I think that's right, though some disagree.)  Indeed, the plaintiff's case here seems stronger than the plaintiff's in Santa Fe.  The state action principles are the same, and even the conservative side of the Court has been relatively resolute against sectarian endorsements.  (See, e.g., Scalia's dissents in Lee v. Weisman and McCreary County.)

In the next couple of days, I'd like to say something about the justiciability and remedy issues, but who knows if time will permit...

Posted by Chris Lund on February 24, 2009 at 06:05 PM | Permalink


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Atleast Congress is trying to do the right thing. The Liberal "Looney Toons" in California (I live in CA and have to deal with them) have ruined the state, and want to destroy the rest of the Country. When will they be stopped?

Posted by: Danny | Jun 8, 2009 12:18:50 PM

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