United States Supreme Court

The U.S. Supreme Court yesterday handed a defeat to activists and other litigants whose extreme views motivate them to try to eliminate from public life almost every symbol and expression of religion. By a slim 5-4 margin, the Court in Salazar v. Buono reversed the U.S. Court of Appeals for the Ninth Circuit and allowed an 8-foot cross in the Mojave Desert to continue to stand – at least for now. The cross is part of a national memorial for the over 300,000 American soldiers who died in World War I.

Justice Anthony Kennedy authored the primary opinion and concluded that the San Francisco-based Ninth Circuit erred when it held that the U.S. could not carry out Congress’s directive to transfer the small parcel of land on which the memorial is located to the Veterans of Foreign Wars (VFW). The VFW is a private, non-governmental organization, and the Establishment Clause of the First Amendment does not apply to religious activities, expressions, or symbols by private parties.

Congress passed the law directing transfer of the land to the VFW after the lower federal courts had held that merely having a cross on federal land violated the Establishment Clause. The outlandish basis for the Ninth Circuit’s holding is, as Justice Kennedy put it, that plaintiff Frank Buono, a retired U.S. Park Service employee, “claims to be offended by the presence of a religious symbol on federal land.”

The case thus posed a threat to all religious symbols on all federal lands. If the Court had affirmed the Ninth Circuit’s extreme decision, it would have opened the door to legal challenges eliminating Stars of David, crosses, and similar religious symbols found, for example, on soldiers’ graves in Arlington National Cemetery and every other federal cemetery. This of course is the same Ninth Circuit that last month barely rejected by a narrow 2-1 majority a challenge to the constitutionality of school children reciting the Pledge of Allegiance because the Pledge includes the two words “under God.” (See Newdow v. Rio Linda Union School District.)

For procedural reasons, the Supreme Court did not consider the correctness of the Ninth Circuit’s original holding in the Mojave cross case forbidding the cross’s use in the memorial. Justice Kennedy wrote, however, that this should not be read to suggest that the Supreme Court agrees with the Ninth Circuit’s decision, “some aspects of which may be questionable.” The Establishment Clause, he wrote, “does not require eradication of all religious symbols in the public realm.”

Justice Kennedy’s primary opinion sent the case back to the federal trial court. If Frank Buono continues to pursue his passion to eradicate the cross, the Court’s decision will require the trial court to conduct a far more thorough analysis of whether the Establishment Clause might be violated even after the land is transferred to the VFW.

Finally, it seems unfortunate that Justice Scalia’s concurring opinion apparently could not command a majority of the nine Justices. His opinion arguably sets forth the best approach and resolution to the case. Justice Scalia concluded that Buono’s own admission that he is not offended by religious symbols on private property demonstrates that he could not possibly suffer any harm if the land were transferred. Joined by Justice Thomas, Justice Scalia concluded that Salazar v. Buono thus cannot meet the requirement of Article III of the Constitution that an actual “case or controversy” exist before the power of the federal judiciary may be exercised in a matter.