Salazar v. Buono [PDF] has been released — and the Sunrise Cross gets to stay.
A Kennedy-Alito-Roberts plurality found that the lower courts were in error when they found that the Government’s transfer of the land to a private party was not permissible. I’ve only been able to read over the plurality and concurrences, and Breyers’ dissent, but here’s my initial take on it.
Kennedy, writing for the three, is almost convincing. I’m not even sure I disagree with the legal analysis. But the factual findings that form the underpinnings of Kennedy’s argument — that no act of religious endorsement has occurred here — are not credible. Kennedy spends a great deal of ink arguing that legislation passed by Congress to protect an unconstitutional establishment of the Christian religion was not in fact religiously motivated. Instead, he insists, this was all a secular misunderstanding — Christianity is not even implicated here, it’s just a war monument! The message conveyed by the cross, and Congress’ decision to save the cross, “assessed in the context of all relevant factors,” signifies only respect for veterans, not respect for Christian sentiment. “One Latin cross in the desert,” Kennedy concludes, “evokes far more than religion.”
I’m not buying it.
Anyone who believes that that the extraordinary lengths undertaken by Congress to preserve the Sunrise Cross were motivated by anything other than a desire to protect Christian symbolism is being deliberately myopic. Would Congress have ever gone to similar lengths to protect a Wiccan alter on Federal land? No. Never. And if anyone else out there thinks otherwise, well, I’ve got some CDOs backed by subprime mortgages I’d like to sell you.
But, to be fair to Kennedy, it’s true that Congress’ decision to transfer the cross to private land, taken by itself out of context, does not pose much of a threat to the Firth Amendment. But it is less the transfer itself, and more the institutional bias towards the protection of Christianity, that is the true problem here. That is where the government endorsement of religion comes from; that is what the harm under the Establishment Clause lies. As a legal matter, I have a hard time finding too much fault with Kennedy’s opinion — but I also believe there is a violation of the spirit of the Constitution here, even if not the letter. The single disputed act at issue in Buono might not mean much, but set into the cultural and institutional history of the United States, it is part of a widespread pattern and practice of religious establishment. Although Kennedy’s opinion focuses extensively on taking the Sunrise Cross “in context” of the surrounding circumstances to find that it is not really a religious symbol, Kennedy completely ignores that taking Congress’ efforts to preserve a cross “in context” with Congress’ wider history of religious protection shows a government whose religious preferences are at the heart of its decision.
The abstract and non-concrete nature of the harm caused by the cross under the Establishment Clause, Chief Justice Roberts, in his one page concurrence. Roberts thinks that there is no dispute here that is worth the Court’s consideration, as it is all a dispute over symbolism and vague feelings of hurt, and not a dispute over any concrete, non-symbolic injury. As the Constitution “deals with substance, not shadows,” there is no First Amendment problem to speak of. And to a certain extent, I actually agree with Roberts’; the shadow-problems in Buono are not so much about a specific substantial and obviously unconstitutional violation of the First Amendment, but rather about pervasive governmental effort to protect shadows of Christianity over the shadows of all other religious beliefs.
Alito’s opinion irks me the most. It is full of sentimental claptrap and light on legal reasoning. He uses heartwarming anecdotes to suggest that, because America is so wonderful and tolerant of diverse religious practices, there is no harm in giving the Government a little slack when it comes to showing a tiny bit of bias for Christianity. To do otherwise, he argues, would be “interpreted by some as an attesting symbol of a Government that is not neutral but hostile on matters of religion.”
No, Justice Alito. It would have been interpreted by the voters of many Congressional districts to show a government hostile not to religion in general, but a government hostile to Christianity in particular. And hostility to Christianity is not an electorally popular platform.
The First Amendment, however, does not permit the Government to engage in protection of religious symbolism that happens to be favorable to a Representative’s chances of reelection, while simultaneously declining to protect those religious symbols for which protection would be politically harmful or neutral.
But Alito seems to think the fact that protecting crosses is so popular means it cannot be religious favoritism. “It is noteworthy,” he writes, “that Congress, in which our country’s religious diversity is well represented, passed this law by overwhelming majorities: 95-0 in the Senate and 407-15 in the House.”
The whole point about having a Constitution, though, is that the popularity of a given legislative act is entirely divorced from whether or not it is constitutionally permissible. Not to mention, the idea that “religious diversity is well represented in Congress” is so laughable, I won’t even bother to debunk it here; there are plenty of other sites that have already taken care of that.
In the end, it is the concurrence of the Scaliomas that comes closest to winning me over. While regretfully noting it would be a shame for the litigants to come all this way only for the Court to be unable to hear the dispute on the merits, their opinion would resolve the case on standing grounds alone. The harm to the plaintiff, they argue, is the presence of the cross on Federal land. The cross is no longer on Federal land. Ergo, no Article III case or controversy and no Supreme Court jurisdiction.
Scalia argues that the real harm being argued in this case, the harm that the parties and the other Justices are focusing on, is the harm in having Congress selectively protect Christianity. However, Scalia points out, that harm is not the harm the original injunction addressed, and the injunction cannot expand. Because Buono initially claimed injury as a result of the cross’s presence on federal land, he cannot now argue before the Supreme Court that he is injured instead by Congress’ religious favoritism in passing the Sunrise Cross act.
But in counterpoint to that argument, Breyers, too, limits his analysis to whether or not the injunction had been properly interpreted by the District Court. Unlike the Scaliomas, however, Breyers finds that the District Court was well within its rights to find that the Government’s actions violated the injunction that had been in place. Although I’d want to spend more time with it to make up my mind, right now I am definitely leaning towards Breyers on this one. True, my knowledge of injunction jurisprudence is pretty limited, so this based mostly on the premise that “parties should not be allowed to engage in creative subterfuge and sketchy dealings to avoid injunctions.” But as made-up legal doctrines go, that’s a pretty sound one to follow.