Is Justice Anthony Kennedy writing the decision in Salazar v. Buono, the case concerning an Establishment Clause challenge to the cross built on federal land in the Mojave Desert? How will this case impact the First Amendment rights of students on university campuses, and the ability of the universities to acknowledge our nation’s religious heritage? And what is this “Supreme Court Bingo?”
The Supreme Court heard oral arguments on October 7, 2009 in the case concerning an objection to the fact that World War I veterans built a cross on federal land to honor their fallen comrades as the living healed from the horrors of war in the peace and isolation of the Mojave Desert in southeastern California, where the Mojave National Preserve is located. The issues in the case on whether an “offended observer,” represented by the ACLU, has suffered sufficient harm by the cross in its federal location, to bring a lawsuit to remove the cross from government land. The case also presents the question of whether the land swap between Congress and the Veterans of Foreign Wars, which traded the land where the cross is for another piece of land owned by the veterans’ group, eliminates any possible constitutional violation.
These issues spring up on university campuses when someone offended by Christian symbols objects and demands that the governmentremove the “offensive” symbol. For example, people complained about a cross in the Wren Chapel at William and Mary, one of the oldest state universities in the United States.
Although the Supreme Court heard oral arguments in the case on October 7, 2009, the high court has not yet handed down the decision as of April 26. This is a pretty long time for the Supreme Court. It also means we can play a game of “Supreme Court Bingo” to see if we can predict the author of the upcoming opinion. There is some complexity to this analysis, but basically it entails taking the list of cases argued in October 2009, and comparing that with the list of decisions the Supreme Court has handed down. What it reveals is that the only case heard in October that the Supreme Court has not handed down is Salazar v. Buono. It also reveals that every justice has written an opinion for a case heard in the October sitting, except for Justice Anthony Kennedy. Although this is not absolutely accurate in predicting the author of a specific opinion, I think the likelihood is high that Justice Kennedy is writing the opinion in Salazar, the Mojave cross case.
Now, the big question is, what does it mean if Justice Kennedy is writing the decision. He is the “swing” justice in the middle of the Court ideologically, who frequently supplies the fifth and deciding vote in many cases. From the tenor of the oral arguments last October, I think the most likely ruling will say two major things:
(1) The Court will leave for another day the question of whether “offended observers” have standing under Article III of the Constitution to challenge governmental actions and displays that they claim violate the Establishment Clause, because the federal government raised this issue too late in the proceedings; and
(2) The swap of the land containing the cross between the U.S. government and the Veterans of Foreign Wars eliminated any possible violation of the Establishment Clause.
This would mean that the Mojave cross would stay up, and the government would remove the plywood box now encasing it. This would be a victory, but a narrow one based on the specific facts of this case. This will leave unresolved the question of whether “offended observers” can bring lawsuits challenging government actions or displays the observers claim violate the Establishment Clause.
The Supreme Court Court could hand down the Salazar decision anytime between now and the end of the term, but as early as Tuesday or Wednesday, April 27 or 28. Stay tuned.