In the eyes of the law

Earlier this year I commented on the case of Buono v. Salazar, SC 08-427 4-28-10 (the WWI Memorial case). It seemed from questions at oral argument that only Alito and Scalia were for reversing this case. However, the Court in a 5-4 split did recently reverse the lower court’s decision and allowed the monument to remain. It indicated that the lower court erred in invalidating the statute which allowed the transfer of land so that the monument would be transferred to private property. The Justices’ positions were as follows: Kennedy, J., wrote the majority opinion. Roberts filed a concurring opinion. Alito filed a concurring opinion in part. Scalia filed his own concurring opinion which Thomas joined. Stevens filed a dissenting opinion. Ginsburg and Sotomayor joined Stevens, and Breyer filed his own dissenting opinion.  I was very interested in seeing how Sotomayor would rule, but since she simply joined in the dissent, the only thing we can be sure of is that she felt the establishment clause had been violated.

The Court ruled that the “[p]lacement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.”  In addition, the cross has served as a memorial for almost 70 years. The court indicated that the statute should not have been invalidated because it was a legitimate solution to the problem of taking down a monument dedicated to those who died in WWI. The statute simply allowed the monument to remain by permitting a land transfer to the Veterans’ of Foreign Wars who initially installed the monument back in 1934.

In his dissent, Stevens essentially stated that the cross was a purely “sectarian message” and that the monument violated the establishment clause and the statute transferring it to private property was an “unambiguous endorsement of a sectarian message.” Given that 6 out of 9 Justices wrote their own opinions, it seems that this issue has not been clearly decided, but since they were only ruling on a statute, rather than all religious themed memorials, it does not seem that this case will have much impact on future issues.