The Supreme Court decided Salazar v. Buono, the Mojave Desert cross case, by a 5-4 fractured vote. As background, after the Ninth Circuit declared the presence of the cross on government property unconstitutional, Congress transferred the land under the cross to private parties so the cross would remain standing. Because the district court had issued an injunction forbidding the government to display the cross, Frank Buono sued to have his injunction enforced.
The Supreme Court remanded the case to the district court for further consideration of Congress's purpose in enacting the statute that transferred the land under the cross. The justices were divided, with opinions by Justices Kennedy, Alito, Scalia, and dissents by Justices Stevens and Breyer. The justices disagreed about the procedural issues connected with the case, spending many pages discussing standing (whether the proper litigant brought the case) and the meaning of an injunction. Justice Kennedy strongly urged the district court to consider Congress's valid purposes in transferring the land. Justice Breyer's dissent dodged the Establishment Clause issue and focused on the meaning of injunctions.
Justice Sotomayor joined Justice Stevens' dissent.
Justice Stevens's dissent cut through much of the confusion created by the majority with his usual clarity and legal insight. Stevens explained straightforwardly why the district court was correct to block the land transfer: The 2002 injunction barred the Government from "permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve." [Congress's] land-transfer statute mandated transfer of the land to an organization that has announced its intention to maintain the cross on Sunrise Rock. That action surely "permit[s] the display of the cross." Therefore Buono should have won his case.
The Supreme Court remanded the case to the district court for further consideration of Congress's purpose in enacting the statute that transferred the land under the cross. The justices were divided, with opinions by Justices Kennedy, Alito, Scalia, and dissents by Justices Stevens and Breyer. The justices disagreed about the procedural issues connected with the case, spending many pages discussing standing (whether the proper litigant brought the case) and the meaning of an injunction. Justice Kennedy strongly urged the district court to consider Congress's valid purposes in transferring the land. Justice Breyer's dissent dodged the Establishment Clause issue and focused on the meaning of injunctions.
Justice Sotomayor joined Justice Stevens' dissent.
Justice Stevens's dissent cut through much of the confusion created by the majority with his usual clarity and legal insight. Stevens explained straightforwardly why the district court was correct to block the land transfer: The 2002 injunction barred the Government from "permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve." [Congress's] land-transfer statute mandated transfer of the land to an organization that has announced its intention to maintain the cross on Sunrise Rock. That action surely "permit[s] the display of the cross." Therefore Buono should have won his case.
Stevens was most powerful in explaining that the Mojave Desert cross is the only national monument to the veterans of World War I, an incredible fact long forgotten in the extensive discussion of the case. According to Stevens, most judges would find it to be a clear Establishment Clause violation if Congress had simply directed that a solitary Latin cross be erected on the Mall in the Nation's Capital to serve as a World War I Memorial. The analysis should not be any different because the cross stood in a California desert.
It is surprising that Congress wasn't embarrassed that it has never created a World War I monument. (The Mojave Desert cross was originally placed by private parties.) It would be easier to believe that Congress had a legitimate secular purpose in mind if it had focused on building a proper WWI display instead of going to great effort to keep one cross intact.
The Establishment Clause will lose a great defender with Justice Stevens's retirement from the Court. The good news from Buono is that Justice Sotomayor joined Stevens' strong dissent in favor of the Establishment Clause. It would have been safer to join Justice Breyer's tepid analysis of the injunction. This sends a positive signal that Sotomayor will enforce the Establishment Clause as well as her predecessor, Justice David Souter, did.
Update: After the Court issued its opinion, the cross was stolen from its desert site and a legal battle is brewing over whether a replacement cross can be installed.
It is surprising that Congress wasn't embarrassed that it has never created a World War I monument. (The Mojave Desert cross was originally placed by private parties.) It would be easier to believe that Congress had a legitimate secular purpose in mind if it had focused on building a proper WWI display instead of going to great effort to keep one cross intact.
The Establishment Clause will lose a great defender with Justice Stevens's retirement from the Court. The good news from Buono is that Justice Sotomayor joined Stevens' strong dissent in favor of the Establishment Clause. It would have been safer to join Justice Breyer's tepid analysis of the injunction. This sends a positive signal that Sotomayor will enforce the Establishment Clause as well as her predecessor, Justice David Souter, did.
Update: After the Court issued its opinion, the cross was stolen from its desert site and a legal battle is brewing over whether a replacement cross can be installed.
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