If there's one thing I've hope you've learned from my Supreme Court coverage on the site, it's that you're always safe betting the "over" on the number of separate opinions any Establishment Clause case will produce.
Such was the case with the decision announced yesterday in Salazar v. Buono, which concerned an eight-foot high Latin cross atop a rock in the middle of the Mojave National Preserve, erected originally in 1934 by members of the Veterans of Foreign Wars to memorialize the dead of World War I.
To simplify the story: Frank Buono, a retired Park Service employee who made regular visits to the Preserve, was offended by the presence of a religious symbol on federal land, sued under the Establishment Clause and won. Congress responded by including within various appropriations bills (a) a ban on the use of federal funds to remove the cross, (b) a declaration that this Cross was a national memorial, and then (c) a land-transfer statute giving the acre where the cross was to the VFW in exchange for other privately-held land in the preserve, providing that the property would revert to the Government if not maintained as a World War I memorial. Right now, the cross is covered by plywood as a result of lower court rulings in Buono's favor.
This situation produced six separate opinions from the nine Justices, with seven votes holding that Buono had the right to sue, five votes (the conservative bloc) holding that the Ninth Circuit was wrong to block the land transfer, but a 4-4 tie (and in this case, tie means they're doing it) on the question of whether the lower court should look again at whether further steps should be taken to make sure the Establishment Clause hasn't been violated so that a "reasonable observer" wouldn't see the cross as government endorsement of religion (an explanatory plaque, a fence, etc.) -- and, hoo boy, there's some serious dispute as to what a "reasonable" observer would know here [HT: Denniston.]
The issue I want to jump ahead to arose in Justice Alito's concurrence, because it's reasoning that makes me want to vomit in my mouth more than a little. The question is whether this Latin cross is a religious symbol, as to which he writes in part:
One possible solution would have been to supplement the monument on Sunrise Rock so that it appropriately recognized the religious diversity of the American soldiers who gave their lives in the First World War. In American military cemeteries overseas, the graves of soldiers who perished in that war were marked with either a white cross or a white Star of David. More than 3,500 Jewish soldiers gave their lives for the United States in World War I, and Congress might have chosen to place a Star of David on Sunrise Rock so that the monument would duplicate those two types of headstones. But Congress may well have thought—not without reason—that the addition of yet another religious symbol would have been unlikely to satisfy the plaintiff, his attorneys, or the lower courts that had found the existing monument to be uncon-stitutional on the ground that it impermissibly endorsed religion.
Congress chose an alternative approach that was designed to eliminate any perception of religious sponsorship stemming from the location of the cross on federally owned land, while at the same time avoiding the disturbing symbolism associated with the destruction of the historic monument. The mechanism that Congress selected is one that is quite common in the West, a “land exchange.” Congress enacted a law under which ownership of the parcel of land on which Sunrise Rock is located would be transferred to the VFW in exchange for another nearby parcel of equal value. Congress required that the Sunrise Rock parcel be used for a war memorial, but Congress did not prevent the VFW from supplementing the existing monument or replacing it with a war memorial of a different design. Although Justice Stevens characterizes this land exchange as one that endorses “a particular religious view,” it is noteworthy that Congress, in which our country’s religious diversity is well represented, passed this law by overwhelming majorities: 95–0 in the Senate and 407–15 in the House.
Emphasis added, because I want you to focus on that last sentence. Justice Alito essentially argues, "this cross can't be that bad -- a lot of Jewish legislators voted for it!"
Dissenting, Justice Stevens demolished this reasoning:
Without the benefit of any committee hearings or floor debate in either the Senate or the House of Representatives—indeed, without a moment of discussion in any official forum—Congress passed legislation officially designating the “five-foot-tall white cross” in the Mojave Desert “as a national memorial commemorating United States participation in World War I and honoring the American veterans of that war.” Thereafter, the cross was no longer just a local artifact; it acquired a formal national status of the highest order. Once that momentous step was taken, changing the identity of the owner of the underlying land could no longer change the public or private character of the cross. The Government has expressly adopted the cross as its own.
... Moreover, the inference that Congress has exercised its institutional competence—or even its considered judgment—is significantly weaker in a case such as this, when the legislative action was “buried in a defense appropriations bill,” and, so far as the record shows, undertaken without any deliberation whatsoever. I am not dismissive of Congress, but §8121 presents no factual findings, reasoning, or long history of “ ‘careful legislative adjustment,’ ” to which I could possibly defer. Congress did not devote “years of careful study” to §8121, nor did it develop a record of any kind, much less an exhaustive one. The concurrence’s attempt to draw an equivalence between a provision tucked silently into an appropriations bill and a major statute debated and developed over many years is, to say the least, not persuasive. All legislative acts are not fungible.
And as for the memorial itself, the Court's lone remaining veteran concluded in an opinion joined by Justices Ginsburg and Sotomayor:
Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect. As far as I can tell, however, it is unprecedented in the Nation’s history to designate a bare, unadorned cross as the national war memorial for a particular group of veterans. Neither the Korean War Memorial, the Vietnam War Memorial, nor the World War II Memorial commemorates our veterans’ sacrifice in sectarian or predominantly religious ways. Each of these impressive structures pays equal respect to all members of the Armed Forces who perished in the service of our Country in those conflicts. In this case, by contrast, a sectarian symbol is the memorial. And because Congress has established no other national monument to the veterans of the Great War, this solitary cross in the middle of the desert is the national World War I memorial. The sequence of legislative decisions made to designate and preserve a solitary Latin cross at an isolated location in the desert as a memorial for those who fought and died in World War I not only failed to cure the Establishment Clause violation but also, in my view, resulted in a dramatically inadequate and inappropriate tribute.
I believe that most judges would find it to be a clear Establishment Clause violation if Congress had simply directed that a solitary Latin cross be erected on the Mall in the Nation’s Capital to serve as a World War I Memorial. Congress did not erect this cross, but it commanded that the cross remain in place, and it gave the cross the imprimatur of Government. Transferring the land pursuant to §8121 would perpetuate rather than cure that unambiguous endorsement of a sectarian message.
The Mojave Desert is a remote location, far from the seat of our Government. But the Government’s interest in honoring all those who have rendered heroic public service regardless of creed, as well as its constitutional responsibility to avoid endorsement of a particular religious view, should control wherever national memorials speak on behalf of our entire country.
The remaining religion case this term is Christian Legal Society v. Martinez, regarding a public university's right to demand compliance with its antidiscrimination policies in determining which student organizations could receive university funding.