Wednesday, April 28, 2010

Salazar v. Buono

70 years ago, the Veterans of Foreign Wars (VFW) erected a cross on Sunrise Rock, which in 2004 became a federal, that is, publicly-owned, parkland. In 1999, the National Park Service (NPS) denied a permit request to install a Buddhist shrine at the same location, announcing that it planned to remove the cross. But, before that could happen, Congress enacted a law prohibiting the expenditure of public funds for cross removal. That led to the first lawsuit in this saga.

In 2001, a former NPS employee, Frank Buono, sued the NPS claiming that the existence of the cross on public lands violated the Establishment Clause of the First Amendment to the US Constitution. The federal district court ruled in his favor, and awarded an injunction. While an appeal was pending, Congress authorized a transfer of the one acre of land on which the cross was standing to the VFW in exchange for an acre of land of equal value. After the 9th Circuit US Court of Appeals affirmed the district court ruling, the NPS proceeded with the land exchange. Mr. Buono sued again, claiming that the land transfer was not sufficient to avoid invalidation under the Establishment Clause because the sole purpose of the land exchange was to preserve the cross, a religious symbol if ever there was one.

Today, the Supreme Court issued a ruling (here) in the case upholding the land transfer. Justice Kennedy wrote the lead opinion in a plurality decision (that is, an opinion that reflected the views of 4 justices). Justice Alito concurred; Justice Scalia wrote a separate concurrence joined by Justice Thomas (mainly because they would have denied the plaintiff standing to sue in the first place). Justice Stevens's dissent was joined by Justices Ginsburg and Sotomayor, but Justice Breyer dissented separately. Obviously, the Justices have lots of different views on this case, and constitutional law scholars will no doubt be parsing their language over the next several months. I will withhold my own judgment until I've had a chance to read all the opinions for myself.

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