U.S. Supreme Court Hears the 'Cross Case', Salazar v. Buono

All who are concerned about the growing hostility toward religious speech and expression should be.

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WASHINGTON, D.C. (Catholic Online) - On Wednesday October 7, 2009 at 10 AM the U.S. Supreme Court heard oral arguments in a case styled Salazar v. Buono (08-472). ). The United States was represented by U.S. Solicitor General Elena Kagan. The name of the case is derived from the original plaintiff in the lower court, Frank Buono, and the Secretary of the Interior, Ken L. Salazar. Ms. Kegan made her second appearance before the Court.

The ACLU Foundation represented Frank Buono. He filed suit to have the Cross removed with the assistance of the ACLU. He was found to have "standing", the ability to actually bring the case when a Federal Court Judge held that the cross constituted an unwelcome religious display. Peter Eliasberg of the ACLU made his first appearance before the Court Wednesday representing Frank Buono.

The question presented by the case is whether this small cross, a memorial to war dead, violates the so called "Lemon Test" and therefore violates the "Establishment Clause" of the First Amendment to the US Constitution. The test was invented by Chief Justice Warren Burger's in his opinion in Lemon v. Kurtzman (1971).

It sets forth three considerations which Courts are supposed to use in such claims. Is there a "secular purpose", does the primary effect advance a religion and does it foster an "excessive entanglement" with religion. The "primary effect" of the display, according to the lower court Judge, was to advance a particular religion and thus it violated the Establishment Clause.

The cross still stands in the Mojave national Preserve in California. However, it has been covered over with plywood. This was ordered by the Court, apparently to prevent any further such "injuries" like what was claimed by Frank Buono.

The Government (Interior Department) took the matter to the Ninth Circuit Court but Congress intervened in 2004. They ordered the Interior Dept to transfer the land which the small cross sits upon to the VFW in exchange for a parcel which was privately owned. The legislation called for it to continue as a War memorial. If it was used for any other purpose, ownership would revert back to the federal Government. .

However, the case was still not over. The original complainant, through the ACLU, asked the District Court to rule that the transfer was invalid. The Court did. It also held that the transfer was an effort to evade the ruling. The Ninth Circuit would not hear the matter again again. So the Interior Department asked the Supreme Court to review the case and it it was heard on Wednesday.

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The Government raised two issues: "standing" (whether Buono had an actual injury and should have been able to bring the original case) and whether the Congressional transfer was "an eminently sensible and constitutionally permissible way of resolving any Establishment Clause problem."

Frank Buono, through the ACLU, countered that he had standing because he "has had direct and unwelcome contact with the cross in the Preserve and will incur burdens to avoid exposure to it in the future." He further argued that the transfer was invalid and did not cure the alleged establishment clause violation.

All who are concerned about the growing hostility toward religious speech and expression should be concerned about the outcome of this case. In 1992, while serving as the Executive Director of the American Center for Law and Justice, following the incomprehensible opinion in Lee v Weisman, I wrote a law review article entitled "In the Wake of Weisman: The Lemon Test is Still a lemon but the Psycho-coercion Test is more bitter Still".

In that article, after tracing the history of the interpretation of the Establishment clause, and the developments of the last few decades, I predicted the insanity that would follow from the efforts of the Supreme Court to apply its so called "Lemon Rule" and it's expanding "interpretations". I am not alone in my criticism.

The Establishment Clause is best understood as an "anti-establishment" clause. It was intended to prohibit the "establishment" of religion in the sense of a Federal or State sponsored Church which mandates adherence from unwilling citizens. The American founders fled coercive approaches to religion. Yet, they were not anti-religious and they were not against religious symbols or expression.

We will watch this case closely.

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