I want to be careful not to say too much because my firm may have a dog in this hunt (and I DO NOT speak for my firm). Nevertheless, I couldn’t let a few things go without noting:
- First, the government didn’t construct the cross, the VFW did. And I think you’re being a bit disingenuous when you leave out the secular purpose of the cross: it’s a war memorial. I don’t think the mere inclusion of religious icons in a memorial necessary defeats its secular purpose. To use an example General Kagan used, for instance, it would not seem to pose an Establishment Clause problem if Congress declared Martin Luther King, Jr.’s church in Atlanta national memorial. (And, by the way, in order to adopt your expansive interpretation of the Establishment Clause, the Court would have to abandon the Lemon test.) If the use of religious symbols in memorials is always problematic, we’re going to need to start digging this memorial up, too.
- Second, the VFW would be free to “change their speech.” As General Kagan explained, the government’s right to reversion is triggered only if the VFW stops using the land for a memorial. They are free to change the memorial, like putting up a big sign that says, “We Don’t Need No Stinkin’ Germans,” so long as it can still rightfully be called a memorial.
- Finally, I think we need to be really careful when we suggest that there’s a lower standing standard in certain cases. As an initial matter, that seems to abrogate the idea that standing is jurisdictional. That idea is already under attack (at least judging from the oral arguments of the case) by the principle that the Government somehow “waived” standing by not raising it sooner. But more importantly, although I hate the slippery slope argument, don’t we have to worry about that in this situation? Do we really want cases where someone can say, “I’ve never been there, but I heard about this situation in X State where the government is doing something I don’t like, so I’m going to sue”?
-Michael
