Yesterday’s Supreme Court ruling in the case Salazar vs. Buono — concerning a cross in the Mojave National Preserve that has been designated as a national memorial — wasn’t quite what we were hoping for, but was also encouraging in some respects. The question of whether or not the government’s sale of the land on which the cross sits to a private veterans’ organization remedies a violation of the Establishment Clause has been sent back to district court. The Supreme Court found that the lower court used the wrong legal standard in deciding to invalidate a transfer of the land on which the cross stands to private ownership. But the opinion does leave the door open to reaching a favorable outcome in the case, and, more importantly, does not preclude private citizens from challenging the constitutionality of religious displays on government property in the future.
The case, Salazar v. Buono, stems from a complaint raised by veteran and former National Park Service employee Frank Buono, who claimed that the presence of an overtly religious symbol on federal land represented unconstitutional favoritism toward a specific religion.
In 2002, while the federal district court case was pending, Congress designated the cross as a national memorial. In an apparent attempt to circumvent the Establishment Clause violation, Congress also transferred one acre of land on which the cross stands to the Veterans of Foreign Wars, with the provision that the VFW continue to maintain it as a war memorial.
The ACLU, which represented Buono in the case, will continue to argue that the transfer does not remedy the government’s unconstitutional endorsement of one particular religion. “The cross is unquestionably a sectarian symbol,” said the ACLU of Southern California’s Peter Eliasberg, who argued the case before the Court, “and we respectfully but strongly disagree with the suggestion by some members of the Court that the cross does not favor one religion.”