In the eyes of the law

In Salazar v. Buono, 08-472 (Supreme Court 2008 – not yet decided) the lower court held that the presence of a Christian cross located on land owned by the federal government was an unconstitutional endorsement of religion. The original cross had been erected in 1934 by the Veterans of Foreign Wars in remembrance of those who died. The original case was brought by a former National Park Service employee who felt that displaying the cross on public lands without other religions represented was offensive. In an attempt to get around the Establishment clause issue, Congress declared the cross a national monument and then attempted to exchange the parcel on which it was located for another so that the memorial would not be located on federal property. The lower court disallowed this as well.

Unlike Citizens United (see previous post) where the Supreme Court took a very limited issue and expanded it beyond recognition, in Salazar, the Supreme Court reduced this potentially far-reaching decision and limited their questioning on oral argument to whether the government had the right to exchange the parcel to allow the cross to stay where it was.

While Scalia suggested that the cross was a war memorial, and Alito implied that the Congress’ actions had solved the Establishment Clause issue, the rest of the Justices seemed focused on whether Congress even had the right to exchange the parcels under these circumstances. Had Souter remained on the court, it is likely he would have objected to the war memorial as being a religious symbol. It will be interesting to read the decision when it comes out and see what Sotomayor has to say, if anything.

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