Posted by Eugene Volokh:
Is The Endorsement Test Up for Grabs in New Supreme Court Case?
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235406739
[1]Salazar v. Buono, which the Court agreed to hear today, involves a
relatively unusual fact pattern (quoting the federal government's
statement of the Question Presented in its petition for review):
More than 70 years ago, the Veterans of Foreign Wars (VFW) erected
a cross as a memorial to fallen service members in a remote area
within what is now a federal preserve. After the district court
held that the presence of the cross on federal land violated the
Establishment Clause and the court permanently enjoined the
government from permitting the display of the cross, Congress
enacted legislation directing the Department of the Interior to
transfer an acre of land including the cross to the VFW in exchange
for a parcel of equal value. The district court then permanently
enjoined the government from implementing that Act of Congress, and
the court of appeals affirmed. The questions presented are:
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.
But resolving this question may well lead the Court to reconsider the
deeper constitutional question -- should the Establishment Clause be
read as presumptively barring government speech that endorses
religion? My guess is that there are now 5 votes on the Court
rejecting the endorsement test: Justices Scalia, Kennedy, and Thomas,
who have criticized the test in the past, and Chief Justice Roberts
and Justice Alito, who I suspect (based on the jurisprudential camp
from which they come) would agree with the other conservatives.
To be sure, there are other ways the Court could avoid the problem; it
can conclude that:
1. Respondent (Buono, who successfully challenged the cross) doesn't
have standing, for the reasons the government gives.
2. Respondent doesn't have standing, because simply being exposed to
religious speech -- even if it violates the Establishment Clause
-- isn't enough of an injury to allow standing. (This would have
the effect of rejecting most challenges to government religious
speech, but would leave government officials presumably still
honor-bound by the existing substantive precedents, and would
leave those precedents enforceable as a matter of federal
constitutional law in those states that have more relaxed standing
requirements.)
3. Even if there was an Establishment Clause problem when the
government maintained the cross, privatizing the cross -- even in
a way that's pretty clearly structured to preserve the cross on a
little island of private property on government land -- avoids any
such problem.
4. Even if the Establishment Clause prohibits speech that a
well-informed observer would see as endorsing religion (that's the
standard articulation of the endorsement test), a well-informed
observer would see the cross here as a war memorial, not an
endorsement of religion.
There is also another possible problem for the Court: Given that the
memorial is a cross, then if it is seen as a religious symbol (i.e.,
if theory 4 noted above isn't accepted), it would presumably be seen
as a symbol for Christianity as such. And some language in [2]Justice
Scalia's opinion in McCreary County v. ACLU suggests that
Christian-only symbolism might be unconstitutional even though a more
ecumenical (Christianity/Judaism/Islam-friendly) "acknowledgment of a
single Creator" should be permissible. (See [3]here for more on
Justice Scalia's argument in McCreary.)
Nonetheless, it's also possible that five of the Justices might
conclude that the underlying problem is the endorsement test, that the
test is not only mistaken on the merits but is also too indeterminate
to be reliably administered, and that the Court should provide lower
courts and government officials clearer guidance for a wide range of
cases by concluding that government speech isn't made unconstitutional
by its endorsement of religion. Such provision of guidance for future
cases is an important part of the Court's function, and the
endorsement test's critics have long argued that the Court's adoption
of that test has been a failure on that score. In any case, should be
quite a case to watch (unless the Court decides the major issue in
[4]Pleasant Grove City v. Summum, which I doubt, given the posture of
that case).
References
1. http://www.scotusblog.com/wp/todays-orders-22309/
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-1693
3. http://volokh.com/posts/1119908881.shtml
4.
http://www.scotusblog.com/wp/argument-preview-pleasant-grove-city-v-summum/
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