Northwestern University Law Review : Colloquy : 2010 : Salazar v. Buono and the Future of the Establishment Clause
Salazar v. Buono: The Perils of Piecemeal Adjudication
The recent U.S.
Supreme Court decision in Salazar v.
a case involving a Latin cross placed on federal land in the
This Essay briefly reviews the facts and procedural history of Salazar, and offers some thoughts on why the litigation may have proceeded as it did, leading to piecemeal adjudication of an important constitutional issue. Finally, the Essay concludes with a discussion of what Salazar may mean for the future of the Supreme Court's Establishment Clause doctrine.
I. The Facts and Procedural History of the Salazar Litigation
In 1934, the Veterans
of Foreign Wars donated the
appealed the injunction to the Ninth Circuit Court of Appeals, arguing that the
When the Ninth Circuit rendered its decision on the injunction appeal, the government lost on both the merits and the standing issues. Rather than appeal the Ninth Circuit's decision on the injunction to the U.S. Supreme Court, however, the government allowed the time for appeal to lapse. Meanwhile, Buono challenged the land transfer in the district court on the ground that the transfer violated the injunction. Specifically, Buono characterized the land transfer as an unconstitutional ruse to keep the cross in place, rather than a legitimate attempt to comply with the original injunction. The government lost, appealed, and lost for the second time in the Ninth Circuit. This time, however, the government sought review from the U.S. Supreme Court on the issues of whether the land transfer violated the injunction and whether Buono had standing to challenge it in the first instance, but not whether either the Mojave Desert cross or the land transfer violated the Establishment Clause. Thus, the somewhat complicated facts and procedural history before the Supreme Court left it with few options other than to dispose of the case on standing grounds (an unlikely result), to reconcile the land transfer statute with the final injunction, or to find that the land transfer violated that injunction.
II. The Salazar Opinions
Justice Kennedy's plurality opinion, joined by Chief Justice Roberts and joined in part by Justice Alito, grudgingly acknowledges the District Court's decision, affirmed on appeal, that the Mojave Desert cross violates the Establishment Clause. On the issue of whether the land transfer can be squared with the injunction, however, the plurality remanded the case so that the district court could consider the "change of law" created by congressional action. According to the plurality, the land transfer resulted from a "congressional statement of policy applicable to the case" that the district court failed to consider: the policy of accommodation. According to the plurality, "[t]he Constitution does not oblige government to avoid any public acknowledgment of religion's role in society. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework."
Given the plurality's broad statements about the virtues of accommodation and the district court's supposed error in that regard, it seems curious that the plurality did not simply decide the issue in favor of the government. The additional reason given for the remand is not particularly persuasive. Justice Kennedy stated that the district court's original injunction was based on the perception of endorsement under the "effect" prong of Lemon v. Kurtzman, while the court later enjoined the land transfer based on congressional intent, i.e., the "intent" prong of Lemon. Putting aside the questions of whether this analysis metastasizes Lemon into several doctrines instead of one and whether the analysis is an unduly stringent construction of the injunction, the question itself points to a very simple fix. The district court need only rephrase its earlier conclusion to declare that a reasonable observer would perceive the land transfer as an attempt by Congress to endorse religion. Why the plurality demands that the district court spell out this conclusion on remand is a puzzle, unless the plurality expects the district court to reach a different one.
plurality opinion rests on very narrow ground; nonetheless, it states some
broad propositions about the Establishment Clause. While distancing itself from the lower court
decision, the plurality notes that "[t]he goal of avoiding governmental
endorsement does not require eradication of all religious symbols in the public
realm." The opinion leaves little doubt about how the
plurality would have decided the case on the merits of the constitutionality of
Justice Alito would
avoid this extra step; his concurrence reaches out to hold that the land
transfer does not violate the injunction at all. Justice Alito's opinion recasts the
characterization of the
For the dissenters,
Justice Stevens, joined by Justices Ginsburg and Sotomayor, provided a forceful
defense of the district court's finding of endorsement. Justice Stevens recognized the obvious: that
Congress intended the land transfer to preserve the cross. Moreover, because Congress designated the
cross a national memorial, the lower court's finding of endorsement of religion
should apply to the
III. The Path of Least Resistance
The reason that the opinions in Salazar fail to squarely address the issue of whether the Mojave Desert cross violates the Establishment Clause is simple: the district court's injunction and the finding upon which it was based, affirmed in the Ninth Circuit, became final and binding res judicata when the government failed to timely appeal that earlier decision to the U.S. Supreme Court. (As if to deflate any contrary expectations, Justice Breyer noted at oral argument that the only remaining legal dispute in the case was the "very technical boring issue" of whether in enacting the land transfer statute the government would be in compliance with the injunction.) It follows, then, that the proximate reason that the issue was foreclosed amounted to the government's decision not to appeal the Ninth Circuit's original adverse ruling. That decision may have left some scratching their heads. If the government wanted to win, why not press its case all the way to the Supreme Court?
Had the Supreme Court
been tasked with discerning the constitutionality of the Mojave Desert cross
itself, the government would have had at its disposal some strong arguments
based on a pair of 2005 Supreme Court Ten Commandments decisions—Van Orden v. Perry
and McCreary County v. ACLU. The Mojave Desert cross had a 68-year
historical pedigree, reminiscent of the 40-year Texas Ten Commandments display
upheld in Van Orden. Unlike the Ten Commandments display struck
down in McCreary, the Mojave Desert
cross was donated by the Veterans of Foreign Wars, rather than having been
commissioned by the government.
Without Van Orden and McCreary to provide a template for Supreme Court litigation
involving religious symbols, the government likely analyzed the potential fate
of the Mojave Desert cross under the Court's prior pair of symbols cases—Lynch v. Donnelly
and County of Allegheny v. ACLU. A critical factor in evaluating the
application of those cases was probably an attempt to predict the vote of
Justice Sandra Day O'Connor, whose endorsement test was introduced in her
concurrence in Lynch and adopted by
the Supreme Court in
Viewed in light of this ambiguity, the government's decision (assuming it was a decision) to let the time for appeal of the injunction lapse and defer to Congress to solve the problem made sense. Congress postponed the need to ponder doctrinal uncertainties when it enacted the land transfer. Congressional action represented an easy solution by a group of actors who were politically motivated to preserve the veterans' memorial cross. Ultimately, however, congressional action must pass constitutional muster, and the final arbiter of that question is the United States Supreme Court. So one way or another, one would expect that the issue of the constitutionality of the Mojave Desert cross would likely end up before the Supreme Court—if not on its own, then tangled up in the legislation designed to keep the cross in place.
Unfortunately, Salazar presented the issue of the
constitutionality of the
IV. The Future of the Supreme Court's Jurisprudence of Monuments and Symbols
Although the Salazar decision does not directly
address the constitutionality of the
The fact that a majority of the Court appears to support the principle of accommodation of religion raises certain implications for the endorsement test. Some of the commentary on the meaning of the Salazar opinions involves speculation about whether the Supreme Court continues to be committed to Justice O'Connor's endorsement test as a measure of the Establishment Clause. In an earlier article on the Court's government speech decision in Pleasant Grove City v. Summum, I argued that Justice Alito's majority opinion signaled a possible retreat from the endorsement test. Justice Alito, writing for all of the Justices except Justice Souter, seemed to suggest in Summum that the Court no longer views monuments and symbols through an exclusively outsider lens. Alito stated that a monument "may be intended to be interpreted, and may in fact be interpreted by different observers in a variety of ways." Particularly in the context of symbols and displays, without a reasonable observer who can discern a message of exclusion the endorsement test loses much of its content.
Now, in Salazar, a case that began as litigation
under the Establishment Clause, Justice Alito's concurrence and Kennedy's
plurality opinion appear to confirm the move from no-endorsement toward its
opposite pole, accommodation. The accommodation to which the Court referred
shifts the focus away from whether a hypothetical observer may perceive an exclusionary
message. Instead, as its definition
suggests, accommodation requires that the parties attempt "a reconciliation of
and it invites potential litigants to make peace with some traces of religion
in public life. Commentators have
recognized that an unyielding Establishment Clause jurisprudence leaves the
losing side no less alienated than the group prevailing in a lawsuit. One can only imagine the stakes being higher
in the case of the proposed removal of a veteran's memorial, a lone cross in a
remote desert outpost. Picking up on
this intuition, Justice Alito repeatedly warned that the alternative to
accommodation would lead to the "disturbing symbolism" of the dismantling of
Nonetheless, the shift
to accommodation in Salazar is made
piecemeal, and for that reason, there is room for disagreement about the
direction of the Court's symbols and monuments cases. For example, in contrast to my explanation,
Professor Mary Jean Dolan argues in her symposium piece that Justice Alito's
opinion in Summum and his concurrence
in Salazar, along with the reasoning
of the Salazar plurality, all depend
on a contextual understanding of monuments that is the hallmark of the
endorsement test. Professor Dolan therefore suggests that in Salazar, the endorsement test's basic
inquiry survives alongside accommodation as two points on a continuum rather
than as opposite poles. While plausible, this interpretation fails to
adequately account for the fact that Justice O'Connor's endorsement test
focuses on the message conveyed to a religious outsider,
but the Salazar plurality and Justice
Alito's concurrence do not. Under the endorsement test, a key question is
whether a reasonable observer who views the
On the other hand, Justice Alito's concurrence in Salazar notes that multiple observers have understood the Mojave desert cross to convey "at least two significantly different messages"—one religious, and one historical. Moreover, the fact that Justice Alito's Salazar concurrence expands the discussion to include observers who would be offended by the symbolism of having the cross removed runs counter to the logic of the endorsement test. In fact, nowhere in Salazar does Justice Alito connect the "disturbing symbolism" of the destruction of the monument with the perceptions of the endorsement test's "reasonable observer." Rather, to the extent that Justice Kennedy's plurality opinion in Salazar discusses the proper application of the endorsement test, it seems, as the plurality notes from the outset, that it is simply constrained by res judicata.
ascendancy of accommodation, however, presents challenges for its
advocates. Professor Stanley Fish
maintains that to "de-religionize" a monument to argue in support of its
constitutionality is disingenuous; of course everyone knows that the cross is a
religious symbol. This assertion, while true, oversimplifies
Justice Kennedy's argument in an important respect. The
Perhaps a more serious
challenge for religionists is the assertion that they can only obtain something
of a Pyrrhic victory when the constitutionality of a religious symbol like the
cross rests on the conclusion that the cross is also secular. As Professor Bartrum explains in his
contribution to this symposium, a legal doctrine that emphasizes the secular
aspects of a religious symbol arguably empowers the state to exercise a "corruptive
power" over religion. He reminds us of the revival of scholarship
on the legacy of Roger Williams, founder of
But all of this is not to suggest that we know precisely what accommodation means or what its limits are. In the context of symbols and monuments accommodation may still be "a label, not a theory." If accommodation is, in fact, the Court's new direction, then it will be important to understand its scope, and Salazar, unfortunately, does not aid in that process.
decision in Salazar v. Buono offers a
partial view into the future of the Court's Establishment Clause doctrine. The decision would have offered a nearly perfect
window if the constitutionality of the
*. Jessie D. Puckett, Jr. Lecturer
and Associate Professor,
2. See Salazar,
3. See Christopher Lund, Salazar v. Buono and the Future of the Establishment Clause, 105 Nw. U. L. Rev. Colloquy 60 (2010) (acknowledging the lack of clarity in the Court's Establishment Clause doctrine, particularly in cases involving symbols), http://www.law.northwestern.edu/lawreview/colloquy/2010/22/LRColl2010n22Lund.pdf (link).
4. Salazar, 130
11. Salazar, 130
12. Buono v. Norton, 364 F. Supp. 2d 1175, 1182 (C.D. Cal. 2005).
of Defense and Emergency Supplemental Appropriations for Recover from and Response
to Terrorist Attacks on the
15. Department of Defense Appropriations Act, 2003, Pub. L. No. 107-248, § 8065(b), 116 Stat. 1519, 1551 (2002) (link). Previously, Congress had passed legislation that barred the use of government funds to dismantle the Mojave Desert cross. Consolidated Appropriations Act, 2001, Pub. L. No. 106-554, § 133, 114 Stat. 2763, 2763A-230 (2001) (link).
of Defense Appropriations Act, 2004, Pub. L. No. 108-87, § 8121, 117 Stat.
1054, 1100 (2003); Salazar, 130
and Wanda Sandoz had maintained the cross since 1983. In 1998 Mr. Sandoz constructed the most
recent version of the monument. Salazar, 130
19. Buono, 371 F.3d at 548, 550.
20. Buono, 364 F. Supp. at 1178.
22. Buono v. Kempthorne, 502 F.3d 1069 (9th Cir. 2007).
for Writ of Certiorari at (I), Salazar, 130
here is any discussion of the concurring opinion of Chief Justice Roberts and
the dissenting opinion of Justice Breyer.
Neither Justice seems to believe that Salazar presents any live Establishment Clause issues. See
25. See Salazar, 130
30. See Salazar, 130
31. Ironically, in the lower court proceedings following Lemon, the Court was more generous when it considered whether a subsequent injunction fulfilled the Court's mandate in that case. See Lemon v. Kurtzman, 411 U.S. 192 (1973) (link).
32. See Salazar, 130
43. I assume for the purpose of this essay that the Department of Interior would have wanted to obtain a judgment from the Supreme Court that overturned the Ninth Circuit ruling but either made a strategic decision not to petition for a grant of certiorari to obtain such a judgment or simply missed the deadline for filing an appeal.
46. Ninth Circuit Judge Diarmuid O'Scannlain made precisely these arguments in his dissent to the denial of rehearing en banc. See Buono v. Kempthorne, 527 F.3d 758, 764–65 (9th Cir. 2008) (denial of rehearing en banc) (O'Scannlain, J., dissenting) (link).
48. See infra
p. 83; Van Orden, 545
49. See Buono v. Kempthorne, 371 F.3d 543 (9th Cir. 2004).
50. See Van Orden v. Perry, 543
51. See Buono v. Kempthorne, 527 F.3d at 764 (O'Scannlain, J., dissenting) (noting that the court failed to mention the argument).
O'Connor's articulation of the endorsement test focuses on whether government
symbols send "a message to nonadherents that they are outsiders, not full
members of the political community, and an accompanying message to adherents
that they are insiders, favored members of the political community." Lynch, 465
of Allegheny v. ACLU, 492 U.S. 573 (1989) (link). In Allegheny,
a plurality of the Court distinguished Lynch
on the ground that the crèche in that case had been surrounded by other items
that detracted from its religious message, while the crèche in the county
courthouse stood alone.
57. Buono v. Norton, 212 F. Supp.2d 1202, 1216-17 (C.D. Cal. 2002).
Justice O'Connor's endorsement test focuses on whether nonadherents are made to
feel like outsiders, this expansive understanding of the Establishment Clause
conflicts with O'Connor's approval of civil references to religion such as the
Pledge and "In God We Trust" on the currency, sometimes described as
"ceremonial deism." On more than one
occasion O'Connor defended the doctrine of ceremonial deism, notably in her
concurrence in the Pledge of Allegiance case, in which she argued that one
factor weighing in favor of the Pledge was its "history and ubiquity." Elk Grove Unified Sch. Dist. v. Newdow, 542
61. The Chief Justice's somewhat cryptic concurrence reveals no motive to effect a doctrinal sea change, but the fact that he joined in Justice Kennedy's plurality opinion is sufficient to show agreement with the dicta in support of accommodation.
62. See. e.g., Pleasant Grove City v.
Summum, 129 S. Ct. 1125, 1139–40 (2009)(Scalia, J., concurring) (link); McCreary, 545
63. Van Orden, 545
64. See Ian Bartrum, Salazar v. Buono: Sacred Symbolism and the Secular State, 105 Nw. U. L. Rev. Colloquy 31 (2010), http://www.law.northwestern.edu/lawreview/colloquy/2010/20/LRColl2010n20Bartrum.pdf (link); Mary Jean Dolan, Salazar v. Buono: The Cross Between Endorsement and History, 105 Nw. U. L. Rev. Colloquy 42 (2010), http://colloquy.law.northwestern.edu/main/2010/09/salazar-v-buono-the-cross-between-endorsement-and-history.html (link); see also David G. Savage, Supreme Court Allows Mojave War Memorial Cross, L.A. Times.com, Apr. 29, 2010, http://articles.latimes.com/2010/apr/29/nation/la-na-court-cross-20100429 (noting that Justice O'Connor had employed the endorsement test, and that the decision in Salazar suggests that the Supreme Court has "shifted somewhat to the right") (link).
65. See Lisa Shaw Roy, Pleasant Grove City v. Summum: Monuments, Messages, and the Next Establishment Clause, 104 NW. U. L. Rev. Colloquy 280 (2010), http://www.law.northwestern.edu/lawreview/colloquy/2010/5/LRColl2010n5Roy.pdf (link). But see Dolan, supra note 64, at 52 (summarizing Mary Jean Dolan, Government Identity Speech and Religion: Establishment Clause Limits After Summum, 19 Wm. & Mary Bill Rts. J. (forthcoming 2010)).
Salazar, for example, Justice Alito
asserts that observers of the
69. See, e.g., Richard M. Esenberg, Must God Be Dead or Irrelevant: Drawing a Circle That Lets Me In, 18 Wm. & Mary Bill Rts. J. 1 (2009); Lisa Shaw Roy, The Establishment Clause and the Concept of Inclusion, 83 Or. L. Rev. 1 (2004); Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the ‘No Endorsement' Test, 86 Mich. L. Rev. 266 (1987).
70. Salazar, 130
71. Dolan, supra note 65, at 52–53.
73. Lynch, 465
74. Professor Dolan acknowledges the lack "of any noticeable attention to the perceptions of offended viewers and religious outsiders" in the Salazar plurality opinion and Justice Alito's concurrence but explains that the lower court decision may have rendered such a discussion unnecessary. Dolan, supra note 65, at 19.
75. Lynch, 465 U.S. at 688 (O'Connor, J., concurring); Buono v. Norton, 371 F.3d 543, 547-50 (9th Cir. 2004) (discussing plaintiffs' standing and the merits); Salazar, 130 S. Ct. at 1832 (Stevens, J., dissenting) (stating the test as prohibiting government from "appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person's standing in the political community'" (quoting Cnty. of Allegheny, 492 U.S. 573, 593–94 (1989) and O'Connor's concurrence in Lynch, 465 U.S. at 687)).
76. Salazar, 130
is one possible argument that Justice Alito's observations may be harmonized
with the endorsement test. Justice
O'Connor's initial formulation of the endorsement test contained a sentence
that recognized the possibility of government disapproval of religion which
presumably could lead to an Establishment Clause violation. See
78. See Salazar,
79. Id. at 1818 ("Although, for purposes of
the opinion, the propriety of the 2002 injunction may be assumed, the following
discussion should not be read to suggest this Court's agreement with that judgment,
some aspects of which may be questionable. The goal of avoiding governmental
endorsement does not require eradication of all religious symbols in the public
realm."). Similarly, the plurality qualifies
its use of the reasonable observer with citations to earlier criticisms of the
endorsement test. See id. at 1819. Justice
Alito's concurrence voices the same skepticism.
80. Stanley Fish, When Is a Cross a Cross?, N.Y. Times Opinionator Blog, May 3, 2010, http://opinionator.blogs.nytimes.com/2010/05/03/when-is-a-cross-a-cross/.
81. See Steven D. Smith, Was Justice Kennedy Dishonest?, Law, Religion, and Ethics: A Multi-faith Dialogue, (May 4, 2010), http://lawreligionethics.net/2010/05/was-justice-kennedy-dishonest/.
82. Bartrum, supra note 65, at 40.
83. See, e.g., Mark deWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (1965).
84. See Howe, supra note 84, at 172 ("The refusal of the Court to recognize that the importance of [the Establishment and Free Exercise Clauses] for most persons lay in the assurance that intruders from the federal wilderness would not trespass in the gardens of religion produced a gravely distorted picture of American intellectual and spiritual history. Furthermore, it permitted the Court to fill the space from which it had removed the vivid complexities of the eighteenth century's political philosophy with a simple and false absolute—all aid to religion is unconstitutional."). But see Martha C. Nussbaum, Liberty of Conscience 306–16 (2008).
85. See, e.g., Amici
Curiae Brief of the American Center for Law and Justice and Fifteen Members of
Congress in Support of Petitioners, Salazar v. Buono, 130 S. Ct. 1803 (No.
08-472) (link); Brief for Amicus Curiae Liberty Counsel in Support of
Petitioners, Salazar v. Buono, 130 S. Ct 1803 (No. 08-472) (link); Brief Amici
Curiae of the Christian Legal Society and the National Association of Evangelicals
in Support of Petitioners, Salazar v. Buono, 130 S. Ct. 1803 (No. 08-472)
(link). Two of the three amicus
briefs mentioned above argue that Buono lacks standing, but their participation
in the litigation shows their willingness to defend the public display of the
86. See, e.g., Cnty. of Allegheny v. ACLU, 492
87. Michael W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 4 (1985). Then-Professor McConnell devoted his article to the discussion of legislative accommodations and free exercise exemptions, not the public display of religious symbols and monuments. See id.; see also Michael McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685, 687 (1992) (excluding symbols cases from discussion of the theory of accommodation).
88. Salazar, 130 S. Ct. at 1820 ("To date, this Court's jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules").
89. See id. at 1818, 1820–21.
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