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Much ado about a little cross


A spectator in the Supreme Court chamber Wednesday morning could well have understood that the Justices had just made a major new pronouncement on the constitutionality of placing religious monuments on government property.  Justice Anthony M. Kennedy, announcing his opinion and the Court’s ruling in Salazar, et al., v. Buono, spoke with obvious approval of erecting such monuments as tributes to those who died in military combat, and of the overall civic virtue in having religious symbols displayed on government grounds.

Kennedy was paraphrasing an opinion that said “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm….The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”  The problem, though, is that those expressions had only three votes in support, and thus did not speak for the Court.  A tangled case, which had been through four separate stages in court and had led to a new law passed by Congress, ended in a tangled set of six opinions from the Supreme Court, not one representing a majority.  The ruling, though, can be sorted out, and, in the end, it does not reach any final outcome.

First, the votes can be counted up:

**  There are seven votes for the notion that a retired National Park Service employee had a legal right — at least at some point as the case proceeded through the courts — to pursue his complaint about a small Christian cross standing in a remote spot in a massive piece of federal property, the Mojave National Preserve in California.  Two Justices dissented explicitly on that point.  Another citizen troubled about such displays elsewhere, however, could not read the Court’s conclusion on the right to sue (technical “standing) in this case as necessarily clearing the way for a challenge in another case with a different history.

**  There are five votes for the conclusion that a federal judge was wrong in barring a congressionally-ordered transfer of the plot of ground on which the cross stands to private ownership, although that result came from two different kinds of reasoning: three Justices said it was wrong as a legal proposition, while two said the Park Service employee should never have been allowed to pursue his complaint. Four other Justices would have upheld the judge’s order (for two different reasons).

** Despite the conclusion that the federal judge was wrong on that point, the Court voted 4-4 to send the case back to that judge to take another look, more closely, at Congress’ action.  The four votes in favor of sending the case back were supported by two different rationales.  Four other Justices opposed the remand, but that, too, resulted from two different approaches.  With the Court split evenly on that issue, though, the case definitely will go back because that is the formal “judgment” of the Court, which had five votes behind it (based on three different rationales).

** There were three votes for the notion that the Court should not even have decided this case: two Justices said so because of their view that the cross’s challenger had no right to be in court, and one said so because there was “no federal question of general significance in this case.”  Those views did not prevail.

Perhaps the most decisive thing the Court had to say was this comment in the lead opinion, by Justice Kennedy: “To date, this Court’s jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules.”

Second, some impressions come from reading between the lines.  Based on what was actually said, and from the known positions of some Justices on the issue of religious monuments on government property, this conclusion can be advanced tentatively: the little cross standing atop Sunrise Rock in the Mojave is likely to win out in the end, if the Veterans of Foreign Wars wants to remove the present plywood cover that obscures it from view, and put up a sign claiming the cross to be a tribute to war dead, rather than to the Christian faith.  And Congress might well draw the conclusion that, at some point, five of the present Justices may well allow the lawmakers to keep a religious monument on government property by transferring the plot of ground on which it stands to private ownership.  The latter, if it does occur at some point, would be a new constitutional declaration, perhaps coming close to being a “categorical rule.”

Justice Kennedy’s favorable comments about religious displays “in the public realm” were supported by Chief Justice John G. Roberts, Jr., and by Justice Samuel A. Alito, Jr. (who expressed even more favorable comments in his separate opinion).  To those three probably could be added, in what Justice Antonin Scalia said would have to be “a proper case” in the future, the votes of Justices Scalia and Clarence Thomas, because in prior disputes they have supported such displays.

On the other side, three Justices — Ruth Bader Ginsburg and Sonia Sotomayor, plus the soon-to-retire John Paul Stevens — made it clear on Wednesday that they remain quite firmly opposed to such displays.  And Justice Stephen G. Breyer, who has been on both sides of the issue in the past, this time voted to uphold the court order against the display in the Mojave even while saying that the Court should not have taken on the dispute in the first place.

The Court obviously labored over the ruling; it was the earliest argued case this Term still awaiting a decision, and the crafting of six opinions no doubt took up the time since it was heard on the third day of the Term.