The Mojave Cross Stays

I have been absolutely swamped at work so it's been a little difficult to find time to analyze the Salazar v. Buono case. Hopefully once I get through trial season and regain my off-work focus, I'll be able to be a more frequent writer. And this case is an absolute mess. This excerpt from the syllabus demonstrates that:

KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined in part. ROBERTS, C. J., filed a concurring opinion. ALITO, J., filed an opinion concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion.

The factual background is interesting and important to some of the Justices. Back in the 1930's, some private citizens put up a cross on this rock outcropping in a remote part of California's Mojave Desert as a memorial to the veterans who died in the Great War. (They didn't yet call it World War I, because World War II hadn't happened yet.) Later, this land became part of the Mojave National Preserve and fell under Federal management. The cross has fallen or been torn down many times, and rebuilt each time by private citizens under the loose organization of a local chapter of the Veterans of Foreign Wars. Some people gather there every Easter for religious services. For a time, there was a plaque there indicating that the cross was a war memorial but it is not there now. When an employee of the National Park Service complained that he didn't think it was right that the Federal government displayed a religious symbol, he filed suit and for a time the Courts ordered that the cross be "not displayed," with the result that the cross was put under plywood boards that were removed by volunteers for the Easter services and then replaced. Seeking to maintain the cross became a minor political cause, and Congress eventually decided to take action – first designating the cross a national monument and then authorizing a swap of the one-acre parcel of land upon which the cross sits to the VFW in exchange for a five-acre parcel the VFW would dedicate to the Mojave National Preserve, thus enlarging the preserve by four acres and allowing the VFW to maintain the cross. The question was whether this act of Congress authorizing the land swap, obviously intended to allow the cross to remain on display, was constitutional and if not, what the remedy should be.

I wouldn't do this with every case; normally I'd just look at the majority and the dissent the way I did a few weeks ago with Newdow v. Rio Linda case from the Ninth Circuit. Perhaps the best way to look at the case is to make a chart showing the positions taken by each of the nine Justices and show where the Court is at.

Issue?	John G. Roberts (Plurality, concurrence)	John Paul Stevens (Principal Dissent)	Antonin Scalia (Concurrence)	Anthony Kennedy (Plurality)	Clarence Thomas (Joins Scalia)	Ruth Bader Ginsburg (Joins Stevens)	Stephen Breyer (Second Dissent)	Samuel Alito (Plurality, concurrence)	Sonia Sotomayor (Joins Stevens)
Does Buono have standing to challenge the cross in the first place?	Yes.	Yes. Congress clearly passed this law to dodge enforcement of a prior injunction in Buono's favor, and Buono can pursue enforcement of that injunction today.	No. He has standing only to prevent the cross from being displayed on Federal land.	Yes. He had standing to challenge the cross being there in the first place, so he now has standing to challenge the new law.	No.	Yes.	Yes. In essence, agrees with Kennedy that Buono's earlier standing to sue is still in effect for this case.	Yes.	Yes.
What remedy is Buono entitled to if he wins?	Joins Kennedy.	Enforcement of the injunction as it is properly understood, which requires that the cross come down and not go back up.	Nothing; he cannot win because he has not been harmed by the land swap.	A new injunction preventing the land swap.	Joins Scalia	Joins Stevens	An injunction requiring the cross to be taken down.	Joins Kennedy	Joins Stevens
Does the new law require a new inquiry into whether the cross can stay or not?	Joins Kennedy.	No. The cross was unconstitutional before and the new law is specifically written to foster display of the cross, which itself violates the Constitution.	No. The cross cannot be on Federal land and the land swap makes the land non-Federal, so no further inquiry is necessary.	Yes. The new law is a new circumstance and the courts should presume Congress did not intend to violate the Constitution.	Joins Scalia	Joins Stevens	No. The court already decided that the cross violates the Constitution and does not need to address that issue again.	Joins Kennedy	Joins Stevens
Is the length of time that the cross has stood in the desert important?	Joins Kennedy.	Yes. The fact that the government had it on display on Federal land for so long irretrievably conveys a message of endorsement of Christianity by the Federal government, even if the land is later transferred to a private party.	No. What's important is that the cross is either on Federal land or non-Federal land; the land swap would result in the cross being on non-Federal land in the future and that's all we care about.	Yes. Since the cross has been there for more than 70 years without challenge, it is part of the public consciousness and removal of it now would evidence hostility to religion by the government as well as disrespect for the war dead.	Joins Scalia	Joins Stevens	Yes, but there is no need to inquire into that issue further because it has already been taken into consideration by earlier decisions finding that this cross violates the Constitution.	In essence, joins Kennedy	Joins Stevens
Is a "Latin Cross" always a religious symbol?	Joins Kennedy.	Yes; sometimes it has a dual meaning as a symbol of remembrance, but it always has some degree of religious content.	Did not address this issue.	No. Sometimes it can be a symbol of death and remembrance, even as to the dead who are not Christian.	Joins Scalia	Joins Stevens	Did not address this issue.	In essence, joins Kennedy	Joins Stevens
Does the opinion of a "reasonable observer" about whether the cross constitutes an "endorsement of religion" by the government matter?	Joins Kennedy	Yes. And that observer would look at all the circumstances and conclude that Congress intentionally passed this law to keep the cross on that rock and thus advance the cause of Christianity.	Did not address this issue.	Probably not. But even if it did, that reasonable observer would find that the cross in this instance is a war memorial and not an object of religious significance.	Joins Scalia	Joins Stevens	Yes. The government obviously intended to have the cross on public display after the land swap and this conveys an endorsement of religion.	No reasonable observer seeing the government transfer ownership of the cross to a private entity could conclude that the government is endorsing Christianity.	Joins Stevens
Can the land swap proceed?	Yes. Requiring the Park Service to tear down the cross, then transfer the land to the VFW, which will undoubtedly put it back up and be a private display, is asinine, so it's OK to just transfer the land as-is.	No. There is no need for further fact-finding; we can tell what Congress did and why it did it, and the land swap would violate the Constitution so it should be enjoined here and now.	Yes. It must proceed in order to comply with the injunction and the law.	Maybe. We can't know for sure what will happen after the land transfer or how the transfer will be understood, so more facts have to be developed at the trial court level.	Yes. Joins Scalia.	No. Joins Stevens.	No. The original injunction prohibits it.	Yes. And it can proceed right now, since Congress has selected from one of many different possible appropriate means to avoid the government maintaining the cross while still achieving the political objective of having the cross stay up on the rock.	No. Joins Stevens.
Is any additional information necessary?	Yes. Joins Kennedy.	No. Congress' intent is clear, and it violates the Constitution.	No. Buono has not been harmed by the proposed land swap.	Yes. More information about Congress' intent and what the VFW will do needs to be put in the record.	Yes. Joins Scalia.	No. Joins Stevens.	No. Essentially agrees with Stevens.	No. Of course the VFW is going to keep the cross up, and Congress wanted that to happen; it's OK that Congress wanted the cross to stay up.	No. Joins Stevens.

Notable from Kennedy's opinion is his statement that "The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society." Five Justices – the four dissenters and Justice Alito – all agree that Congress quite transparently wants the cross to remain standing. Alito, unlike his Brethren in dissent, has no real problem with that.

I'm also gratified to see Justice Sotomayor voting with the dissent.  Much has been made that Justice Sotomayor is Catholic and her Brother Justices who are also Catholic -- Roberts, Scalia, Kennedy, Thomas, and Alito -- all seem to have visions of a very weak separation between church and state.  I had been apprehensive of her opinions on religion-government issues based on a case she heard while on the Second Circuit.  Here, though, she seems to have signed off of the strictest separation opinion available, making the dissenting opinion the one that obtained the most votes and articulated the most coherent theory.

With that said, although I disagree with the result he reaches, I must say that I found Justice Alito's opinion to be persuasive, direct, and wonderfully-written.  His talents as a jurist really show through.

But equally notable is the fact that in order to permit the Government to take action to maintain the cross, Justice Kennedy must step out of his role as a judge and step into the role of art critic. His intensely context-driven approach tries to have it both ways – to say that yes, the cross is a religious symbol and that's okay, the government does not have to pretend religion does not exist and does not provide people with powerful emotional experiences, and at the same time to say no, this cross, on this rock, in this desert, in this setting, with this history, is not a religious symbol but instead is a symbol of remembrance of the noble dead of our nation's wars now gratefully consigned to our history. To preserve the religious symbol, in other words, he must drain it of religious significance.

If I were a Christian, I'd find that notion more than a little bit disturbing. I only get my religion recognized by the government when the religious symbols lack religious content?

But I'm not a Christian, so instead I find it more than a little bit dishonest. Are we supposed to all collectively wink at the religious significance of the cross and pretend that it isn't a symbol of Christianity? I completely agree that the cross is a powerful symbol that can be used as a symbol of death and remembrance, as a marker on a grave, and is very effective at communicating that idea. But at the same time, it's inextricably intertwined with, inherently the same as, the symbol of the death of a particular man, Jesus, which is one of the central events in the mythology of Christianity. You can't separate out the secular and religious elements of this symbol.

As a lawyer and I find the idea of judges acting as art critics more than a little disturbing. Why does Justice Kennedy's personal interpretation of this cross, on this rock, in this patch of desert, with this history behind it, matter? How is Justice Kennedy's opinion about those facts any better than mine, or yours, or Pastor Joe's, or Rabbi Klein's, or my dog's? At minimum, if we're going to engage in a judicial inquiry about the artistic content and messages expressed by a particular piece of art, well, let's hear from some experts with training and experience in interpreting art. Let's hear from art critics, art history professors, and actual artists.

The big issue in the case is the continued vitality of the "endorsement test." It seems to me that the test is still valid, although it is in significant danger. The Court adopted the "endorsement test" in a case called Santa Fe v. Doe, which had to do with student-led prayers before high school football games in Texas. Under that test, an Establishment of religion is found when a reasonable, objective observer, who is aware of not only the wording of a particular governmental policy but also its history, the intent of the body that adopted the policy, and the way that the policy is actually implemented, would look at all of the relevant facts and conclude that the government was endorsing a particular religion by saying to its adherents that they were favored or part of the "in" group and people who did not subscribe to the religion were part of the "out" group.

The plurality stopped short of saying that the "endorsement test" is not the appropriate way to decide whether an Establishment has happened or not. It actually went through the motions of applying the test to the facts of this case and finding no endorsement. Both dissents explicitly adopted and applied the test and found an endorsement. Only Scalia's opinion (joined by Thomas) did not address the issue of endorsement. But Scalia and Thomas are on record as disapproving of the endorsement test and opinion that it is not really the law at all. Roberts and Alito addressed the test but did not agree that it was the law. So as many as five Justices seem to think that it isn't the law; but seven out of the nine Justices actually applied the test.

It is with respect to this issue that we must most carefully look at whoever it is that President Obama nominates to replace Justice Stevens.

I'm headed out to Las Vegas tomorrow.  If there's time, maybe I'll take a moment to see if I can actually see the thing.  I doubt I'll have time to drive down to the cross to see it up close, though -- it's something like  twenty miles south of the rest stop on I-15 near Cima Road, and The Wife and I have to pick up tickets to see Penn & Teller so there is a timetable.