What The Supreme Court Didn't Do And What I Think It Will Do

Everyone's talking about Ricci v. DeStefano, the affirmative action case. And with good reason; it's interesting, ground-breaking, and has implications for the Sonia Sotomayor nomination (since it was her ruling that was overruled by the Supremes).

But one thing that surprises me a little bit is the lack of action in the case of Salazar v. Buono. I thought it would be the big religion case of the term, but the Supremes kicked it over to next year. Look for oral argument to be scheduled in late October or maybe early November and don't expect a ruling until the end of next year's term.

The case involves a cross that you can (or rather, could) see on the top of a rock formation called "Sunrise Hill" while driving along Interstate 15 between Barstow and Las Vegas. Mojave National Preserve terminates within yards of the interstate and Sunrise Hill is located within the Preserve. The picture above is a government photograph of the cross taken before the lawsuit was filed.

Originally, the land was owned by a private person, and he put up a large cross that was visible from the road as a memorial to soldiers killed in the Great War. (No problem, by the way. Private land, private display, that's free speech.) Then, the land passed to the control of the Federal government. It was initially administered by the BLM and under President Clinton, converted to a national park. During this time, vandals would periodically destroy the cross or portions of it, and volunteers would come and rebuild it.

In 1999, a Utah man asked to erect a Buddhist shrine next to the cross, and the National Park Service refused that request. Then, this lawsuit was filed by the ACLU on behalf of a variety of people, challenging the presence and maintenance of the cross as a violation of the Establishment Clause. Congress responded to the lawsuit by passing a private law, swapping a one-acre parcel including the cross for a five-acre parcel elsewhere within the Preserve, so as to return the land to private status.

Presently, the cross is concealed under a tarp on orders of the Ninth Circuit, which ruled that its presence is an Establishment in violation of the First Amendment. However, every year at Easter, volunteers hike out to the cross, take the tarp down, hold a Christian religious service, and then the tarp is put back up (whether by the volunteers or Federal employees is not clear to me). The National Park Service rules technically forbid this, but in practice, the park rangers tolerate it because it is a non-violent and transitory use of the public's land.

Establishment Clause jurisprudence in its current form is in a terrible, nearly indecipherable mess. There are three ways of looking at Establishment Clause questions:

First, there is the Lemon Test. Three questions have to be answered are: First, does the government action have a secular purpose? If so, does the governmental action neither inhibit nor advance religion? If so, does the governmental action avoid creating an "excessive entanglement" between government and religion? If so, the action is Constitutionally permissible under this almost forty-year old case. Lemon has been criticized for the subjective nature of its three-part test, especially the last prong, but it has never been overruled and is often applied to governmental activity. Debatably, it has been narrowed by another case called Agostini v. Felton, which applied a simpler form of the Lemon test, effectively omitting the third prong.

Second, there is the "endorsement" test, which had been favored by Justice Sandra Day O'Connor during her service on the Court. The idea was originally articulated in her concurring opinion in the case of Lynch v. Donnelly. This asks whether a reasonable observer would conclude that the government was endorsing a particular religion or had an intent to do so. Intent and endorsement, in turn, are inherently fact-based inquiries, meaning that under this test, there is no bright-line rule but rather a case-by-case analysis. As always with Justice O'Connor's opinions, the idea sounds reasonable and useful, but fails to provide a clear rule that would guide courts and legislatures.

Finally, there is what has been called the "coercion" test, which was fleshed out by Justice Anthony Kennedy in Allegheny County v. ACLU of Pittsburgh, again in a concurring opinion. (Both Lynch and Allegheny County were cases involving challenges to nativity scenes.) A "coercion" analysis would presume that governmental activity with respect to religion is valid, unless the challenger can demonstrate that the government support of religion is so strong as to constitute the creation of a state church, or if the governmental action compels someone to either participate in or support a religious activity against their will. This is a relatively narrow reading of the Establishment Clause, but it also suffers from the same subjectivity problems that the others do -- there are examples of judges (and Supreme Court Justices) purporting to apply the same version of this test and reaching different results.

Here's how I think we'll see Salazar v. Buono break down. I predict that by a 6-3 decision, the government will win, and the cross will be allowed to stand, uncovered.

Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Alito, and Sotomayor will rule that because the cross was originally on private land, the government took control of it "as is" and could maintain the land in the condition in which it was found. The land swap was a rational and appropriate way for the government to realize and advance that objective, and to preserve a monument that has acquired historical significance. Because it was unquestionably a valid form of speech when it was created, it is okay now. There will be much talk about the cross' "mere presence" on government land as not conveying a message to a reasonable observer that the government is endorsing Christianity, with painstakingly researched factual references to religious symbols appearing on other sorts of Federal land or buildings throughout history.

While I am pretty confident they will agree on this reasoning and this result, I am much less confident that they will resolve the tension and confusion in the jurisprudence. They will not articulate a single standard for the evaluation of Establishment Clause cases. Nor is it entirely out of my mind that all six of these Justices are practicing Catholics.

Justice Thomas will write a separate concurring opinion, arguing that the original intent of the authors of the First Amendment was not to prohibit the display of a cross on publicly-owned land, but rather only to prohibit the creation of a mandatory participatory religious institution by the Federal government. Whether Justices Scalia and Alito will join this opinion is a good question, but this narrow originalist opinion will get no more than three votes.

Based on my reading of this recent case, Hein v. Freedom From Religion Foundation, I think we will see a more foreboding signal from the "conservative" Justices. Sometimes, the Court questions a litigant's "standing to sue" as a way of ducking a controversial issue. The Pledge of Allegiance case is a really good example of that -- rather than answer the question of whether requiring a schoolchild to recite the modified Pledge of Allegiance, incorporating the phrase "under God," is an Estblishment, the Supremes said that the plaintiff didn't get to ask that question because the plaintiff was a non-custodial parent of the particular schoolchild in question. But there is also the question of whether anyone can challenge a purported Establishment in the first place. Justices Scalia and Thomas would effectively deny any individual or advocacy-group litigant the right to file a lawsuit against the Federal government alleging the Establishment of a religion.

Moreover, the flexible "coercion" test appears to be gaining strength, because that was the basic reasoning used by Roberts, Kennedy, and Alito in the above case. They would look at the plaintiff in Salazar v. Buono and ask, "So let's say that the government really is endorsing Christianity here. So what? How does that hurt you? You don't have to be a Christian just because the government allows private parties to maintain this cross in the Mojave National Preserve." If some or all of these Justices can be persuaded that there is no concrete injury other than an infinitesimally small amount of tax money that goes in to paying the salaries of park rangers who look the other way at the cross, and they want to avoid a decision on the merits using the traditional Supreme Court trick of challenging standing rather than ruling on the merits, they have the ability to join Scalia and Thomas in saying that taxpayer standing is not enough in this case. If that point of view can command five votes, this case will not just erode but eviscerate the Establishment Clause as a meanginful part of the Constitution* than the narrower exception that I'm predicting here. I don't predict that, though; they could have done it in Hein and didn't.

Justices Stevens, Ginsburg, and Breyer will dissent, arguing that land swap law a tissue and determine that Congress' intent in dong the land swap was not to net four acres of land but rather to preserve the cross. This, the dissenters will argue, demonstrates an intent by Congress to promote and protect the cross as a religious symbol, which therefore proves that it is indeed an Establishment of religion. They will also mention that they disagree with the notion that the plaintiff lacks standing.

Personally, I don't see how the presence of a large cross, visible from the Interstate, on Federal land, could be reasonably seen as anything other than a governmental endorsement of the Christian religion. The refusal of the government to allow non-Christian religious symbols to be placed there adds a lot of weight to that understanding of the cross' presence. Finally, there is the argument that the cross is a "generic symbol of death and memorial" -- while I concede that there is indeed something to this concept (an idea to which I was initially very cool) in this case, considering the use to which the cross is put, I would argue that this cross, in this context, in the present day, has become a religious symbol and a focus of religious activity. So I would join what I anticipate will be the dissent.

This should surprise regular Readers of this blog not at all. But, we'll have to wait until after the first Monday in October to get any hint of how right I am.


* This would not be the first time that the Supreme Court has, through its power to interpret the Constitution, eroded its terms into near-oblivion. For instance, the Privileges and Immunities Clause is basically worthless as an assurance of individual rights thanks to The Slaughter-House Cases (1873) 83 U.S. 36.