WASHINGTON (BP)–The U.S. Supreme Court heard oral arguments Oct. 7 on the display of a cross in the middle of federal land but seemed to indicate it would not address whether the war memorial violated the First Amendment’s ban on government establishment of religion.
The justices also appeared to bypass the question of whether the “offended observer” had legal standing to file a suit.
Instead, they focused much of their attention on whether Congress violated a lower-court injunction in transferring the land on which the cross stands to a private organization.
The case, Salazar v. Buono, involves a 75-year-old World War I memorial that consists of a cross standing on the land of a national preserve in California’s Mojave Desert.
In 2001, a retired National Park Service employee who had worked at the preserve sued the federal government. Frank Buono, who now lives in Oregon, contended he was offended by the cross’ display on public property on which other types of displays were not permitted.
A federal judge and the Ninth Circuit Court of Appeals ruled Buono had legal standing. They also decided the display violated the establishment clause.
After the federal court’s ruling, which also permanently blocked the cross’ display, the government covered the cross with a wooden box. The cross, described as between five feet and eight feet in height, is still covered.
In 2004, Congress responded to the ruling by transferring the property on which the cross stands to the Veterans of Foreign Wars (VFW) in exchange for another piece of privately owned land in the preserve. The federal judge, however, ruled Congress’ action violated the injunction and permanently blocked the federal government from completing the land transfer. The Ninth Circuit affirmed the judge’s ruling in 2007.
In defending the cross, Solicitor General Elena Kagan told the justices the federal government believes the question is no longer “whether the display by the government would be constitutional, but only whether the government has the ability to transfer this property and — and to give up all supervision” to the VFW.
Associate Justice Stephen Breyer disagreed. “The injunction says the government is enjoined from permitting the display of the Latin cross, period,” he told Kagan. “Once this law takes effect and you follow it, you are violating that injunction. You don’t need nine proceedings to see that. You are violating it.”
Associate Justice Antonin Scalia rebutted Breyer, saying, “It seems to me unreasonable to read the injunction to say the government shall not permit anybody to display a cross on that land no matter who owns the land. I assume the injunction meant you will not permit the cross to be displayed on this parcel of government land.”
Later, Associate Justice John Paul Stevens asked Kagan if she acknowledged the establishment clause was violated at the time the federal judge ruled in Buono’s favor.
No, Kagan told him. “The government has argued … that there was no violation prior to the transfer statute, and that remains the government’s position, although, as I said to Justice Scalia, we think that that position has been overtaken by events and that the only question before the court is the transfer statute,” she said.
Peter Eliasberg, an ACLU lawyer from Southern California, told the justices the government had violated the establishment clause by designating the display as a national memorial, by making certain “the cross remains up” and by favoring the “same parties that it has always favored in this case to the exclusion of others.”
Afterward, Jeff Shafer of the Alliance Defense Fund (ADF) told Baptist Press he left the court’s chamber “very confused about what the court is going to do.”
“I walked in thinking this was going to be predominantly a question of standing that was going to be addressed, but it seems that the court really was more focused on the minutiae of the posture” of the case, said Shafer, senior legal counsel for ADF. “I could see this going on a procedural issue rather than either the standing issue or the substantive establishment clause issue” based on what happened in the oral arguments.
“[I]f the court finds that the injunction did not forbid what Congress did, that alleviates the need to address the establishment clause issue or the standing issue,” he said.
The position “that the injunction did not forbid the land transfer” may gain five votes, and “maybe we’ll have to wait for another case to see the court address the offended observer’s standing,” Shafer said.
ADF joined in a friend-of-the-court brief contending Buono had not suffered and did not have legal standing to bring suit.
In addition to ADF, other organizations submitting friend-of-the-court briefs in support of the government included the American Center for Law and Justice, American Legion Department of California, Becket Fund for Religious Liberty, Boy Scouts of America, Christian Legal Society, Liberty Counsel and the VFW.
Among those supporting Buono with friend-of-the-court briefs were the American Humanist Association, American Jewish Congress, Americans United for Separation of Church and State, Baptist Joint Committee on Religious Liberty, Freedom From Religion Foundation and Jewish War Veterans of the United States.
A decision is expected before the court adjoins next summer.
Tom Strode is Washington bureau chief for Baptist Press.