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The Case of the Desert Cross Goes Before the Supreme Court

The Supreme Court's Establishment Clause jurisprudence is, quite simply, a confusing mess when it comes to religious monuments on public land.  So much so that two different cases involving displays of the Ten Commandments heard on the same day can end up with different results. 

For these types of cases, the Court has typically engaged in an ad hoc, fact-based examination of the situations surrounding the monuments in order to determine whether they violated the Constitution's prohibition on advancement of a single religion by the government. 

That being so, the Court should have fun with Salazar v. Buono, oral arguments for which occurred this morning.  The facts surrounding this case are convoluted as well as novel.  The dispute concerns a cross erected without authorization on federal land by the Veteran of Foreign Wars over 70 years ago to commemorate fallen US soldiers.  The cross, which sits in the massive, 1.6 million acre Mojave National Preserve, has been the site of Easter sunrise services since it was first built. 
The National Park Service denied the construction of Buddhist shrine near the monument in 1999, and admitted that it was looking into removing the cross because of its religious connection.  In 2000, however, Congress intervened and prohibited the use of federal funds to remove the cross.  Congress next designated the cross as a national monument dedicated to US soldiers who fell during World War I.

Then along came Frank Buono, a former assistant superintendent of the preserve, who sued to remove the cross.  A federal district court sided with Buono and held that the monument's primary effect was to advance religion in violation of the Establishment Clause.  The NPS appealed, but while the case was proceeding, Congress pulled a sneak play and ordered the Interior Department to give the land upon which the cross sat to the VFW in exchange for private land within the preserve.  The transfer required the VFW to maintain a war memorial on the land, or else it would revert back to federal ownership. 

Eventually, the Ninth Circuit agreed with the lower court and held that the monument violated the Establishment Clause.  It did not decide whether the transfer of land was valid, however.

So Buono brought another suit challenging the land swap.  The district court and 9th Circuit both sided with him again, holding that the transfer did not end the constitutional violation.

The government's appeal to the Supreme Court raised two issues, arguing that Buono had no standing to sue, and that the Congressional transfer of land was an adequate remedy to the constitutional transgression. 

At argument today, the Court seemed to focus on the latter of the government's two arguments, despite Justice Scalia's eagerness to focus on the underlying Establishment Clause question and Solicitor General Elena Kagan's attempts to direct the Court's attention to the issue of Buono's standing. 

The focus on Congress' "reversionary interest" in the land seemed to destine this case to be an interesting sidenote in the Court's Establishment Clause history.  Regardless of how the Court rules, if it focuses on the actions Congress took as a proper or improper remedy for an Establishment Clause offense, it will remove any sweeping impact that this case may have had. 

So despite the major issues that parties on both sides wanted to raise, it looks like this case may end up just like the cross in question: an almost unnoticeable speck in a vast wilderness.