OPINION:
The Supreme Court’s decision in Salazar v. Buono is a partial victory for religious liberties that underscores the importance of the upcoming battle over a replacement for Justice John Paul Stevens. Buono involved a lawsuit over a Latin cross erected by private citizens on public property as part of a war memorial honoring American soldiers who fell during World War I.
The cross is located in a remote section of the Mojave Desert and has stood since the 1930s. Nonetheless, the American Civil Liberties Union challenged the display as constituting an “establishment” of religion because the cross is located on government land, and the United States Court of Appeals for the 9th Circuit agreed, finding that the cross constituted a government “endorsement” of Christian beliefs. When Congress sought to cure the purported constitutional violation by passing legislation to transfer the land on which the cross sits to the Veterans of Foreign Wars, the 9th Circuit held that the legislation itself violated the Constitution.
The 9th Circuit’s decision is a textbook example of the flawed outcomes reached by some courts applying the Supreme Court’s “endorsement” test. Neither the text nor the history of the Establishment Clause suggests that the presence of a cross in a war memorial, much less a congressionally approved transfer of the land on which the war memorial sits to a private party for fair value, violates the Constitution. Indeed, the display of crosses and other religious symbolism as part of war memorials on government land is routine and ingrained in our nation’s history. The 9th Circuit’s decision is particularly striking because it enjoined a carefully crafted statute passed with overwhelming congressional support that sought to cure the very defect the court identified in its earlier ruling.
Buono thus provided the Supreme Court an opportunity to clarify the law in this area and abandon the “endorsement” test in favor of a test that would more closely adhere to the Constitution’s original meaning. However, the decision is a mixed bag. By a 5-4 margin, the court reversed the 9th Circuit’s decision. However, it failed to issue a strong repudiation of the endorsement test, instead attempting to interpret the test to avoid outcomes that manifest an overt hostility to religion.
Writing for a plurality of the court, Justice Anthony Kennedy observed that “[t]he goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm” or “oblige government to avoid any public acknowledgment of religion’s role in society.” Displays having both religious and historical significance, such as the war memorial at issue in Buono, do not violate the Constitution. Nor did Congress “endorse” any religion when it sought to accommodate the display and remedy the alleged constitutional violation by transferring the land on which the cross sits to a private party.
Indeed, the absurdity of the 9th Circuit’s ruling is illustrated in Chief Justice John Roberts’ concurring opinion. As Chief Justice Roberts observed, those challenging the cross conceded that there would be no constitutional violation if the government simply tore down the cross, sold the land to the Veterans of Foreign Wars, gave the veterans group the cross and allowed it to raise the cross again immediately. The fact that the land transfer included the cross should not make any material difference.
Nonetheless, Justice Stevens and certain other dissenting justices maintained that the statute transferring the land with the cross on it violated the Constitution. In their view, the statute constituted a “continued endorsement of a starkly sectarian message” because it would “leave the cross intact.”
The divide within the court could not be more clear-cut. While one side views the Constitution as permitting the continued acknowledgment of religion and religious symbolism within the public sphere, the other views even reasonable attempts to accommodate such viewpoints as constitutionally impermissible. This debate among the justices reflects a broader debate among the public that is sure to manifest itself during the upcoming confirmation hearings over Justice Stevens’ replacement. Will religion continue to find a place within the public sphere? The next few appointments to the court may decide this question.
Douglas Smith is a scholar in residence at Loyola University Chicago School of Law who filed an amicus brief in support of the petitioners in Salazar v. Buono.
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