Salazar v. Buono: The Perils of Piecemeal Adjudication

Lisa Shaw Roy[*]

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The recent U.S. Supreme Court decision in Salazar v. Buono,[1] a case involving a Latin cross placed on federal land in the Mojave Desert by the Veterans of Foreign Wars, approaches what many would assume to be the central issue in the case from an oblique.  Does the Mojave Desert cross, sitting atop Sunrise Peak in a federal park preserve, violate the Establishment Clause of the First Amendment?  Neither Justice Kennedy’s plurality opinion nor any of the concurring or dissenting opinions in Salazar answers that question.  Salazar’s complicated web of facts and procedural history precluded the Court from resolving the most compelling issue in the Salazar litigation.[2]  Instead, most of the opinions in Salazar circle the merits of the constitutionality of the Mojave Desert cross in language ostensibly directed at the remedy—the land transfer statute enacted to preserve the cross—but arguably aimed at the cross itself.  On a charitable view, the plurality, concurring, and dissenting opinions simply make the best of the facts and law given the tortured path of the case through the lower courts.  But it is not folly to speculate that a different path would have presented cleaner issues for decision and resolution, and would have given some closure to the litigants involved.  Perhaps most important, a decision on the merits of the constitutionality of the Mojave Desert cross could have clarified the trajectory of the Supreme Court’s Establishment Clause doctrine for future cases.[3]

Salazar v. Buono and the Future of the Establishment Clause

Christopher Lund[*]

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Commentators often complain that Establishment Clause jurisprudence is incoherent and unprincipled.  That accusation usually seems overwrought—perhaps we should not expect so much consistency from a Court that decides only the cases that come before it, holds multiple values, operates with continually changing personnel, and gives significant but unquantifiable weight to precedent.[1]  Yet of the areas of Establishment Clause litigation, this complaint carries the most force in the context of passive-display cases—cases where the government passively displays a religious symbol, like a cross or a crèche, a Ten Commandments monument, or an illuminated Bible.  Here the critics have a point.

Salazar v. Buono: The Cross Between Endorsement and History

Mary Jean Dolan[*]

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The striking image of a white cross on stark rock, silhouetted against the desert sky,[1] now symbolizes not only Christianity and, arguably, World War I military sacrifice, but also the equally dramatic, prolonged saga of the Salazar v. Buono litigation.  The photos invoke the most recent Supreme Court battle in the legal and cultural war to define religion’s role in the public square.  Competing approaches stress either preserving history or avoiding government endorsement of religion; this brief article analyzes a potential new synthesis suggested by Buono.

The original cross war memorial was erected in 1934 by a local group of WWI veterans in the Mojave Desert,[2] an isolated area of federally-owned land which, 60 years later, became a National Preserve.[3]  When Frank Buono brought an Establishment Clause suit over the display of the large cross on federal land, the district court held that it conveyed the appearance of a government endorsement of Christianity, and thus enjoined its display.[4]  While the decision was pending before the district court, and in the aftermath of 9/11, Congress designated the cross a National Memorial.[5]  Next, rather than remove the cross, while the first Ninth Circuit appeal was pending, Congress passed a land swap bill to transfer the underlying property to the Veterans of Foreign Wars (VFW), so long as the property continued to be used as a war memorial.[6]  The Ninth Circuit affirmed, without resolving the issue of whether the land transfer would itself be constitutional or cure the Establishment Clause violation.[7]  When Buono returned to the district court to stop the land transfer, that court found Congress’s strategy to be an invalid attempt to circumvent the 2002 injunction and permanently enjoined the land transfer (the “2005 injunction”).[8]  The Ninth Circuit again affirmed.[9]

Salazar v. Buono: Sacred Symbolism and the Secular State

Ian Bartrum[*]

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After oral argument, Salazar v. Buono looked like it might be a dud.  As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause question” that gave rise to the legal controversy.[1]   But, in the intervening months, the case has gotten more and more interesting.  First, most members of the Court did—in at least some way—reach the substantive merits in the decision; ironically, only Justices Scalia and Clarence Thomas would have disposed of the case on standing grounds.  And second, in a twist no one saw coming, the Latin cross at the heart of the dispute disappeared just a few days after the Court announced its decision.[2]  As a result, a case that seemed doomed to founder on its awkward procedural posture has, at least fleetingly, brought the Establishment Clause back into the national spotlight.  Given the complexity of the procedural questions, however, it is probably worthwhile to revisit the case’s history before moving on to the more intriguing substantive questions the Court’s opinions present.