Justice Sotomayor's first Church and State decision: Salazar v. Buono (orals begin 10/07/2009)

[usregimechange]

On October 7th 2009 the Supreme Court of the United States will hear oral arguments in what will be Justice Sotomayor's first Establishment Clause case as a Justice. This case is also a growing battleground in what already is a major fight involving all the usual groups aligning for and against this application of one of our most cherished and important legal principles, the Separation Church and State.


The Case:
Salazar v. Buono, 08-472
http://origin.www.supremecourtus.gov/docket/08-472.htm

Petition for a writ of certiorari was granted by at least four Justices on Feb 23 2009.


What is the case about?


A large Latin cross at the top of...


Mojave National Preserve:


In Southern California between I-15 and I-40; headquarters in Barstow, CA.
http://www.nps.gov/moja/index.htm

...which is under the jurisdiction of...




http://www.doi.gov/


The questions presented:
1. Whether respondent has standing to maintain this action where he has no objection to the public display of a cross, but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols.

2. Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands.
http://origin.www.supremecourtus.gov/docket/08-472.htm


ACLU description:
Whether a congressional statute transferring a small parcel of land in the Mojave Desert National Preserve to private owners satisfies the government's obligation to cure the Establishment Clause violation created by a Latin cross on public land, when the government also designates the cross as a national memorial and retains a reversionary interest in the land...
http://www.aclu.org/scotus/2009term/40500res20090801/40500res20090801.html


Americans United for Separation of Church and State is watching the case closely:
The newest justice and her colleagues have before them Salazar v. Buono, a case the Supreme Court will hear this fall. Her opinion in that California dispute will be the first indication as to whether AU and Sotomayor see eye-to-eye on the Constitution.

Americans United filed a friend-of-the-court brief in Salazar last week because a lot is at stake in the case. The Religious Right has used this lawsuit to wage war on long-standing court precedent that allows those who are forced to view permanent religious displays on public property the right to sue...
http://blog.au.org/2009/08/07/first-test-sotomayor-will-help-decide-fate-of-cross-in-california-park/
http://www.au.org/media/press-releases/archives/2009/08/salazar-brief.pdf


9th Circuit 3 judge panel ruling:
A Latin cross sits atop a prominent rock outcropping known as “Sunrise Rock” in the Mojave National Preserve (“Preserve”). Our court previously held that the presence of the cross in the Preserve—which consists of more than 90 percent federally-owned land, including the land where the cross is situated—violates the Establishment Clause of the United States Constitution. Buono v. Norton, 371 F.3d 543 (9th Cir. 2004). We affirmed the district court’s judgment permanently enjoining the government “from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”

During the pendency of the first appeal, Congress enacted a statute directing that the land on which the cross is situated be transferred to a private organization in exchange for a parcel of privately-owned land located elsewhere in the Preserve. See Pub.L. No. 108-87, R. 12.1, 12.4 § 8121(a)-(f), 117 Stat. 1100 (2003). That land exchange is already in progress and would leave a little donut hole of land with a cross in the midst of a vast federal preserve. The issue we address today is whether the land exchange violates the district court’s permanent injunction. We conclude that it does, and affirm the district court’s order permanently enjoining the government from effectuating the land exchange and ordering the government to comply with the original injunction.
http://www.ca9.uscourts.gov/datastore/opinions/2007/09/05/0555852.pdf


District Judge (who ruled that the Latin cross on public land violated the Establishment Clause):
Timlin, Robert J. - Nominated by William J. Clinton on April 26, 1994.

9th Circuit Panel Judges (who affirmed the District Court):
McKeown, M. Margaret - Nominated by William J. Clinton on January 7, 1997.
Whyte, Ronald M. - Nominated by George H.W. Bush on July 26, 1991 (District Judge sitting by designation).
Fletcher, Betty Binns - Nominated by Jimmy Carter on July 12, 1979.

[Strong Atheist]

1. So, how do you feel about this? nt.

[usregimechange]

4. I think the government tried to circumvent a court order and did dishonor to their oath of office

[Strong Atheist]

10. Cool. nt.

[imdjh]

11. Anyone read Chinese?

Had to get rid of the picture because it was too big. It was of DC's Chinatown gate which I strongly suspect has religious iconography included in the numerous inscriptions.

[usregimechange]

14. which may be ok, included in a larger display may indicate a secular purpose

[imdjh]

16. That's fine. I also don't have a problem with the crosses at Las Cruces.

The goal, from where I sit, is not to rid society of the cultural memory or expression of religion, it's to rid the government of the influence of Religion. Having a state funeral at the National Cathedral is fine, having a policy meeting with the Vatican is not.

[usregimechange]

19. The courts have developed a number of tests to tease out that difference but one thing is sure

there are a lot of times when conservatives label an endorsement as "acknowledgment" when it clearly isn't.

[boppers]

2. Yellowstone should not have cross gysers.

However, the federal government should not regulate speech on private lands.

This should be an interesting case.

[usregimechange]

5. The land and control of the cross would have been not entirely private:

Although Congress sought to transfer the property to the
VFW, a private entity, the various statutes, when read as a
package, evince continuing government control. The following
summary highlights that control:
• NPS retains overall management and supervision
of the Preserve.
• NPS is responsible for “the supervision, management,
and control” of national memorials.
• The “five-foot-tall white cross” in the Mojave
National Preserve is designated as a “national
memorial.”
• The transfer of land to the VFW is conditioned
on the VFW’s maintenance of the conveyed
property as a memorial to World War I veterans.
• The Secretary must carry out its duties under
§ 8137, which provides $10,000 for NPS to
acquire and install replicas of the original cross
and plaque.
• The property “shall revert” to government ownership
if “it is no longer being maintained as a war
memorial.”
The government retains various rights of control over the
cross and the property. NPS is granted statutory powers of
“supervision, management, and control” of national memorials.
See 16 U.S.C. §§ 2, 431. Thus, NPS’s general supervisory
and managerial responsibilities with respect to the cross
remain, despite a land transfer.

http://www.ca9.uscourts.gov/datastore/opinions/2007/09/05/0555852.pdf

[boppers]

7. § 8137 endorses a religious symbol? eom

[usregimechange]

8. That was the plan until the court blocked em.

[Cleita]

3. I'd rather they used their time going over the tax free status of churches

that encourage politics and violence against politicians and other government servants instead of a couple of sticks on a rock. Let a Star of David, a Crescent and Star and any other religious symbols be put on the same rock at the same height. It should solve the problem. Of course I know the complaint is about the cross and not about the tax free status of certain churches but I sure wish it were.

[usregimechange]

6. That is what happened the NPS denied another religious symbol, "not also an open forum"

[usregimechange]

9. And you guys know that this case is also an attempt to prevent people from being able to bring suit

That is a major concern for civil libertarians.

[tigereye]

12. do any First People's oppose the cross? is that area considered sacred to

them? Just a thought.


That vista is so lovely, the cross doesn't seem necessary.

[usregimechange]

13. The park's web site has photos, lovely place.

[Igel]

15. Wouldn't that defeat the claim?

I mean, "It's sacred to people X, therefore government policy must be in accord with that religion" gets you nowhere.

[usregimechange]

17. That isn't true it might very well get you to a theocracy.

[tigereye]

20. no, I was just curious, considering putting the cross up there in the first

place might simply be culturally insensitive...

[Soylent Brice]

18. K&R

[and-justice-for-all]

21. Well that is a big No No...nt

[imdjh]

22. I just read the article in the American Legion magazine.

I'm picking up my neighbor's mail this week.

They are seriously maintaining that these aren't religious symbols, they are veterans memorials "in the shape of a cross." I shit you not.

And they were quite aware when they put these up that they weren't universal, but because Jews have traditionally accepted that Christianity is the universal religion and cultural tradition of the US they didn't feel like they were insulting the Jews. After all , in the mind of the fundamentalist, Christianity is the fulfillment of Judaism and therefore no insult.

[and-justice-for-all]

23. They will say ANYTHING to circumvent the Constitution...

what ever it takes to get their way.

They cry that people are trampling upon the Constitution, then they turn around and do exactly that...Hypocrites to the last.

[MindPilot]

24. Not only are they denying the cross is a religious symbol

they are really twisting the concept of standing. The mere fact that as citizen points out a violation just isn't good enough; these conservative judges want to see proof of some kind of harm. Like the godly aura around the non-religious cross symbol burned your retinas or something.

[imdjh]

26. I'm not sure what the big deal is. Can't the USSC do a "from now on" ruling?

I should think that a great deal of this would be solved if the USSC were to rule that while the objection was still valid in the past, that the issue wasn't resolved and that these kinds of memorials were erected in good faith. So all the memorials up until now can stand and even be replaced when the time comes. However, no new religious emblems on public land, in government expression, or on behalf of the government.

[usregimechange]

28. I think that is what Kennedy will do. I just hope Sotomayor will lean some in the other direction

[MindPilot]

31. The problem is the memorials were not erected in good faith

The Mt Soledad cross and to a slightly lesser extent the Sunrise Rock cross were just crosses until their constitutionality was challenged, and only then did they become "war memorials" and they did so solely for the purpose of maintaining a religious symbol on public land. So the issue has become much more than just a cross on government property; it is the machinations by government entities to keep a cross there in direct violation of a judge's order.

[usregimechange]

33. Agreed, Congress made it worse

[immoderate]

25. Was that the American Legion's opinion of how Jews feel about Christianity?

I'm a Jewish atheist, which empowers me to speak for nobody, but it's unbelievable that they won't hear from some Jewish groups on that. Whatever that is, it's at the level of "utterly..."

--imm

[imdjh]

27. The article doesn't go into that.

It was my observation that Jews have traditionally accepted that Christianity is the defacto state religion of the US. Now whether that's because they really didn't care, or because between pogroms and the holocaust in Europe, it just never seemed like a good time to challenge the ubiquity of Christianity in America is another question.

[immoderate]

29. Well Jews are used to being a minority.

And again, only speaking for myself, I would say that Jews "recognize" rather than "accept" that Christianity is the defacto state religion. But with these monuments, Jewish organizations are often in the forefront of those that are suing the government. They are usually lined up with the FFRF, ACLU, and AU.

--imm

[MindPilot]

30. Jewish organizations have joined in the Mt Soledad cross case

The litigants in that case--which will also be deeply affected by this decision--now includes two Muslims and the Jewish War Veterans. (a group which dates back to the Civil war)

The Soledad case is currently pending in the 9th.

[immoderate]

32. Thanks. I'm not surprised.

As I mentioned above, Jewish groups usually enter these cases on the side of the separationists, as you might expect from a minority.

--imm