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Tuesday, October 06, 2009

Speculative Prediction About Salazar

Tomorrow is the oral argument in Salazar v. Buono -- the case about the constitutionality of the cross in the Mojave National Preserve.  I had an earlier post on it here

There are several ways for the Court to go.  It could strike down the cross.  Or it could uphold the cross because there's no standing, or because the cross is constitutional, or because the land transfer (remember Congress passed a statute to transfer the cross to someone else) remedies any constitutional problem.  The briefs are helpful; I especially recommend Doug Laycock's brief on behalf of Muslim servicemen.  It's unrelentingly good; Laycock takes what the cross means further than anyone else.

This case has the potential to remake the Establishment Clause as regards passive displays.  The plaintiffs present this as an easy case -- "I have always believed, and all my opinions are consistent with the view, that the Establishment Clause prohibits the favoring of one religion over others," Justice Scalia has said (Kiryas Joel).  If the Court wants to uphold the cross, it may be tempted to pass this off on standing grounds or remedy grounds, precisely because the alternative holding -- the cross is secular or has predominantly secular meaning -- is so ugly.

Here's a hasty and overconfident prediction.  I'll say 5-4 that the cross comes down, with Kennedy crossing over.  If not that, 5-4 the cross stays up on grounds that the plaintiff himself lacks standing because he hasn't properly alleged injury-in-fact.  (I don't think the court will say that there's no standing generally.)  Third guess -- I probably need more than three -- plaintiffs win 8-1.

Predictions?  Rick, Paul?

Update: Briefs and other documents available here.

Posted by Chris Lund on October 6, 2009 at 03:28 PM | Permalink


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Posted by: Joe | Oct 9, 2009 11:18:35 AM

This may seem like a stupid question, but where could I get the briefs? No Westlaw for me.

Posted by: Matthew Reid Krell | Oct 6, 2009 5:38:13 PM

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