The Supreme Court will hear argument at 10 a.m. Wednesday in Salazar v. Buono (08-472).  U.S. Solicitor General Elena Kagan, in her second argument in her new post, will represent the government and Interior Secretary Ken L. Salazar, as well as others.  Peter J. Eliasberg of Los Angeles, the managing attorney for the ACLU Foundation of Southern California, will be making his first Supreme Court argument, representing Frank Buono, the challenger to the Christian cross that stands in the Mojave National Preserve in California.

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The Supreme Court returns to its elusive pursuit of clarity about the constitutionality of placing religious symbols on public property in a case that is complicated by questions over who has a right to challenge such displays and over Congress’s power to protect such a symbol by transferring it to private hands.

Background

The Mojave National Preserve is a massive tract of land — about 1.6 million acres, or 2,500 square miles — in California’s San Bernardino County.  About ninety percent of it is federally owned.  On top of an outcropping known as “Sunrise Rock,” in a remote site on federal land, there is a Christian cross.  It can be seen from about 100 yards away as one motors along Cima Road.  It is modest in size, no more than eight feet tall.  It, like several earlier versions that preceded it, serves as a memorial to individuals who have died in military service.  The original cross was put up in 1934 by the Veterans of Foreign Wars.

That little monument is now the centerpiece in the latest controversy to reach the Supreme Court on the constitutionality of erecting, or maintaining, a distinctly religious symbol on government land or in public parks.  It is a subject that, over the years, has produced an uncertain set of constitutional standards that make it quite difficult to suggest, in advance, which symbols will pass, and which will be forbidden.  This latest controversy also raises the fundamental question of who may come to court to contest the legality of such monuments to faith.

The Sunrise Rock cross has had its own legal history.  In 1999, the National Park Service was  asked to allow a dome-shaped Buddhist shrine to be put up near the cross.  Citing a regulation that bars any commemorative installation in a national park area without headquarters permission, the Service denied the request.  In doing so, the Service noted the presence of the cross, and commented that “it is our intention to have the cross removed.”

Studying the issue further, NPS officials decided that the property did not qualify as a historic place to go on the National Register of such sites, partly because the site is used for religious purposes.  Religious groups have held Easter Sunrise services at the cross for more than 70 years.  In 2000, Congress stepped in, denying the use of any federal funds to take down the cross.  Shortly after, Congress gave the cross designation as a national memorial honoring World War I veterans.  A new plaque noting the sponsorship of the VFW was ordered installed at the site.

In March 2001, Frank Buono, a resident of Oregon who said he regularly visited the Preserve (where he previously had served as an assistant superintendent), filed a lawsuit challenging the cross.  He indicated that, as a Roman Catholic, he is not offended by a Christian cross, nor was he even offended by a religious symbol on government property if the site were open to other permanent displays.  He said that, on future visits to the Preserve, he would avoid the cross.   A federal judge barred the cross after ruling that Buono was entitled to challenge it because its presence subjected him to an unwelcome religious display.

The primary effect, the judge found, was to advance religion, in violation of the Constitution’s Establishment Clause.  The Interior Department appealed to the Ninth Circuit Court; in the meantime, Congress in 2004 ordered the Interior Department to convey the land on which the cross sits to the VFW in exchange for five acres of privately owned land within the Preserve.  The bill required that the land revert to federal ownership if it was no longer maintained as a war memorial.

As a result of the judge’s ruling, the cross was covered by a plywood box.  Later, the Ninth Circuit agreed that Buono had an interest sufficient to allow him to sue, and ruled that the display was unconstitutional.  Relying on its own precedent invalidating the display of a Christian cross in a public park in Eugene, Ore., it said the Mojave cross was a First Amendment violation.  It said it would leave to another day whether Congress’s order of transfer to the VFW was constitutionally valid.

The case then returned to the district court, with Buono asking that the transfer to the VFW be ruled invalid under the Establishment Clause.  The judge agreed, ruling that the transfer was an attempt by Congress to evade the court ruling against the cross display.  This remained a government endorsement of a particular religion, the judge concluded.  The transfer was aimed at keeping the cross in place, the judge found, and was thus barred.  Again, the Ninth Circuit affirmed, finding that the transfer would not end the endorsement of religion.  The government still had control of the property, the court of appeals said.  Over five judges’ dissent, the Ninth Circuit refused to reconsider the case en banc.

Petition for Certiorari

The Interior Department last October took the case on to the Supreme Court (docket 08-472), raising two questions: a challenge to Buono’s “standing” to sue, and a plea to uphold the congressional transfer of the land to private hands as a remedy for any constitutional offense.   While fully airing the “standing” issue, contending that Buono’s objection is ideological rather than religious and that he has suffered no actual injury from the display so it is “a stretch” to allow him to sue, the petition put a heavy focus on what it deemed the constitutional error of the lower courts, especially the Ninth Circuit.

The decision by Congress to transfer the land where the cross sits “was an eminently sensible and constitutionally permissible way of resolving any Establishment Clause problem,” the petition asserted.  This also averted any appearance of hostility to religion or to the memory of “fallen service members.”  And, it added, that part of the Ninth Circuit’s ruling conflicts with one by the Seventh Circuit in a 2005 case.

Buono’s response urged the Court to deny review, arguing that he clearly has a claim of injury, and that the case did not actually present to the Court an order directing removal of the cross, nor did it present the validity of Congress’s transfer of the land to the VFW.  It did contend, though, that the transfer did not cure the Establishment Clause problem. There is no actual conflict on the transfer question between the Ninth and Seventh Circuits, the response contended. On the standing issue, it contended that Buono “has had direct and unwelcome contact with the cross in the Preserve and will incur burdens to avoid exposure to it in the future.”

Finally, Buono’s response argued that the case is not a good one to test any of the issues, because it may well be moot, since the VFW post to which the land transfer was made is now defunct.

The Court granted review of the government petition on Feb. 23, and has set the oral argument for Oct. 7.

Merits Briefs

The Interior Department’s merits brief began with the standing issue, seeking directly to contest Buono’s claim that his objection is a religious one; he only seeks an open forum, and that is not a religious matter.  In essence, the brief argued, he is actually protesting having to observe a war memorial, a use with which he simply disagrees.  In addition, it suggested, he can have no religious objection any longer, because Congress’s order of a land transfer has cured any Establishment Clause problem, and that, too, undercut his claim of injury.

Defending the cross as a war memorial, the government brief said it serves “important secular purposes” — that is, preserving a war memorial.  That is not “a sham,” it insisted.  And, it added, if ever there was an Establishment Clause problem, it has been overcome by a legitimate transfer.  Moreover, it argued, the government will not retain any controls over the property as a consequence of the transfer.  If the site were to revert to the government, it would still be maintained only as a war memorial.

Buono’s merits brief, too, began with the standing issue.  Since the government did not file an appeal to the Supreme Court on the initial question of his right to sue to challenge the cross, that issue is no longer available for review by the Justices, it argued.  It went on to contend that Buono was a proper party to return to court to enforce the judge’s initial ruling that the cross is an invalid display.  Congress’s transfer, he said, caused him a new injury that he has standing to challenge.

Moving on to what merits question may be before the Court, Buono’s counsel contended that the judge’s initial injunction against the cross is settled law and is no longer open to challenge before the Justices, since the government is not permitted to relitigate it.  What is left of the case, it went on, is whether the land transfer remedied the Establishment Clause violation and, if it does not, whether Congress has actually interfered with the achievement of a complete remedy for that violation.  On that point, the brief asserted, the transfer does not achieve a complete remedy.  The government is continuing to endorse the Christian symbol through Congress’s designation of it as a national memorial, the brief said.

There are only 45 other designated national memorials — including such structures as the Washington Monument  and Mount Rushmore.  That argument appeared to be intended to show that the small plot of land and the Mojave cross have been given a truly grand stature by Congress.   The means chosen by Congress for the transfer continued the favoritism of the Christian symbol, the brief said.

The case, predictably, has drawn wide amici support, on both sides, including an array of veterans’ groups arguing opposite views on the impact of the case on war memorials.  The government has drawn a number of conservative advocacy groups to its side, and the former park officer has lined up behind him almost as many liberal advocacy groups.  In each case, the groups are familiar entrants into debates before the Court on religious symbols.

Analysis

For decades, the Court has looked at religious symbols of varying dimensions and content sited on public property, and has usually analyzed each in a fact-specific way.  As a result, on the same day, it has rendered a decision going one way on a Ten Commandments display, and a separate decision going the other way.  Thus, if the Buono case follows the familiar pattern, the Court will parse closely all of the facts surrounding the Mojave cross: how it got there, how long it has been there, how the site has been used, what message or messages government has sent while it has stood there, and why its validity is only now being tested. Those are some of the ingredients in examining whether the government has embraced a religious symbol as its own, and, if so, whether it is unconstitutional as a result.  The war memorial facet of this particular monument could skew that analysis somewhat; it is not clear, though, that the cause to which a monument is formally dedicated can survive a constitutional challenge when it is so distinctly a symbol of one religious faith.

What makes this case different, if the Court decides that it will rule on the merits, is the novel question of how the government can cure an Establishment Clause violation (provided, of course, the Court first finds that there was such a violation).  The Court could well make new law on that remedy issue, if it is reached.

Because so much of the dispute, and the contents of the briefs, are focused on Buono’s standing to sue, the Court would seem likely to give that special attention, perhaps even more than focusing on the usual jurisdictional question of finding that standing must exist before a case could proceed to the merits.  The case has the potential to re-define what kind of injury an objector must show when confronted with a purely religious symbol on public property.  Some of the Justices — especially Antonin Scalia — have made it very clear that they want to narrow the concept of standing to sue, and they have recently appeared to be gaining support among their colleagues.

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