Analysis: A case of disappearing issues
Haggling over what issues are actually before them, the Supreme Court Justices on Wednesday turned a major case on the constitutionality of religious monuments on government property into what seemed like a mere shadow of its former self. As the case of Salazar v. Buono (08-472) reached the Court, it looked like a significant new test of such displays, of who could challenge them, and of how the government could react if told to take them down. But, after an hour of oral argument, only the last of those was still in play, and it appeared to have been pared down to its specific facts, with few if any wider implications.
The case of the Christian cross standing alone in the midst of a huge federal land preserve in a California desert put before the Court the latest in a continuing series of controversies over religious commemoration in public places. Lower federal courts had found the cross’s presence there unconstitutional, and barred enforcement of an attempt by Congress in 2004 to shift ownership of the site into private hands in a bid to save the cross. The federal government took the case to the Supreme Court to protest those rulings.
Despite strenuous efforts by Justice Antonin Scalia to keep alive the core question of whether the cross display was a violation of the Constitution’s Establishment Clause, the dominant sentiment on the bench seemed to be that that was no longer open to review. And despite efforts by U.S. Solicitor General Elena Kagan to get the Court to focus on whether a former park service officer had any right to sue to test the display, that, too, seemed to be beyond the Court’s reach. Kagan, in fact, had to endure lectures by several of the Justices that the government should have tested that question earlier in the case and so had now missed its chance.
The Solicitor General, and a California civil liberties lawyer on the other side, Peter J. Eliasberg, found themselves compelled to pore over the details of Congress’s response to the lower court rulings, rather than arguing broad constitutional principles. The effect was to significantly shrink even the remaining issue in the case.
Kagan insisted that those details showed that Congress only wanted to keep a “war memorial” on the site, which only incidentally was a religious symbol, so there was no basis for blocking the land transfer; it cured any constitutional problem. Eliasberg countered that those details showed that Congress had singled out a single religious faith for favoritism, gave that cross a monumental status that few other iconic structures get, did not actually forfeit its interest in keeping the Mojave cross standing on Sunrise Rock, and thus remained in a continuing constitutional violation.
While the Justices showed a lively interest in those details, that, too, simply reinforced the impression that the case no longer ranked on the grand scale of potential precedents of sweeping impact. Large questions of separating church and state tended to get lost in close questioning about a “reversionary interest” the government has in Sunrise Rock, and about what kinds of signs the National Park Service might put up on or near this cross to make it seem like the display was conveying someone else’s message, rather than the government’s.
Justice Scalia spent considerable effort in trying to keep the argument on the constitutionality of the cross’s display. He said the government had no obligation, just because it put up a monument to one faith, to have other monuments on the same site to other faiths. In fact, he said, the Mojave cross was a commemoration of the service of soldiers of all faiths, including Jews and Muslims. Scalia said it was “outrageous” to suggest otherwise.
Justice Samuel A. Alito, Jr., suggested that the Court should take the government at its word, that Congress had washed its hands of the cross and had remedied whatever Establishment Clause problem its presence on public land had caused. Echoing the Solicitor General’s core argument, Alito said Congress’s only interest was in maintaining a war memorial.
Beyond those two, however, the remaining Justices who took part (Justice Clarence Thomas remained silent) raised questions and made comments in what sounded much like a seminar on federal court jurisdiction and the meaning and scope of court injunctions. In the few moments when the members of the Court discussed the merits of the case, they simply bypassed the right-to-sue issue and the validity of this particular display, choosing instead to analyze the legal effect of the steps Congress took to protect the display from its challengers.