Monday, May 3, 2010

Salazar v. Buono, 130 S.Ct. 1803 (2010)

The facts in this case (under different named parties) have been summarized in former blogs. In each of the cases decided by the U.S. District Court and the Ninth Circuit, the judges ruled the Latin cross honoring deceased veterans of World War I embedded on federal land in a vast isolated national park violated the First Amendment Establishment Clause and enjoined its presence. Both courts held the plaintiff had "standing" to sue because he was "offended" by a cross on publicly owned land. Incredulously, the Ninth Circuit allowed his offended sensibilities to establish "standing." This is not the first time the Ninth Circuit has allowed "offensiveness" to impart "standing" but the Government did not appeal the case. In response to the Ninth Circuit injunction, Congress arranged a "land exchange" with a private party in order to retain the Latin Cross on private property. The District Court and the Ninth Circuit, the latter characterizing the exchange as a "sham," refused to acknowledge Congressional power to arrange the transfer. On appeal from the Ninth Circuit decision to the Supreme Court, the Justices reversed the Ninth Circuit and ordered the District Court to conduct an evidentiary hearing to determine correct application of First Amendment law. The Supreme Court criticized the Ninth Circuit for applying the wrong law. The only issue before the Supreme Court consisted of the plaintiff's attempt to expand the scope of the injunction the District Court had originally issued and subsequently expanded. The facts, and the Supreme Court decision, are not as important as the language used by the Court in its decision. The Supreme Court chastised the U.S. District Court and the Ninth Circuit for ignoring the proper legal approach to the plaintiff's challenge to the erection and maintenance of a Latin cross on federal land. The Court majority applied its previous Establishment precedent, and the first requirement to avoid its violation requires a religious symbol to include a secular component. In this case, the cross did not attempt submission to any religion but was a memorial to soldiers who died in World War I. The irony of this case is a sad footnote that not a single monument exists to honor those soldiers who died or were wounded. See, note following 16 U.S.C. 431 (listing officially designated national memorials, including the National D-Day Memorial and the Vietnam Veterans Memorial). Research discloses no other national memorial honoring American soldiers-more than 300,000 of them-who were killed or wounded in World War I. See generally A. Leland & M. Oboroceanu, Congressional Research Service Report for Congress, American War and Military Operations Casualties: Lists and Statistics 2 (2009). "It is reasonable to interpret the congressional designation as giving recognition to the historical meaning that the cross had attained. Cf. Van Orden v. Perry, 545 U.S. 677, 702-703, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (BREYER, J., concurring in judgment) (40 years without legal challenge to a Ten Commandments display suggest[s] that the public visiting the [surrounding] grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage." The Supreme Court notes the only issue for their resolution is the expanded terms of the injunction issued by the District Court and affirmed by the Ninth Circuit. Although Salazar v. Buono is narrow decision, the majority decision contains some interesting language. Here are the excerpts: "The meaning conveyed by a monument is generally not a simple one, and a monument may be 'interpreted by different observers, in a variety of ways'. The cross is of course the preeminent symbol of Christianity, and Easter services have long been held on Sunrise Rock, . . . But, as noted, the original reason for the placement of the cross was to commemorate American war dead and, particularly for those with searing memories of The Great War, the symbol that was selected, a plain unadorned white cross, no doubt evoked the unforgettable image of the white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict." "If Congress had done nothing [about the Ninth Circuit decision], the Government would have been required to take down the cross, which had stood on Sunrise Rock for nearly 70 years, and this removal would have been viewed by many as a sign of disrespect for the brave soldiers whom the cross was meant to honor. The demolition of this venerable if unsophisticated, monument would also have been interpreted by some as an arresting symbol of a Government that is not neutral but hostile on matters of religion and is bent on eliminating from all public places and symbols any trace of our country's religious heritage." "This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework." ". . .[T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

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