The First Amendment Center's Tony Mauro offers this on-target analysis of yesterday's Supreme Court oral argument in Salazar v. Buono.
Justices seemed ready to accept the law as a solution, though some members of the Court voiced concern that even after the land passes into private hands, government might still have a measure of control over the memorial that would pose constitutional problems. For example, if the new owners, the local Veterans of Foreign Wars chapter, decided to take down the memorial, the land would revert to the government. But justices disagreed over whether that part of the law required that the cross be maintained or would allow for some less religious form of war memorial.
Even if the Court’s ruling in Salazar v. Buono is limited to approving the land transfer, such a decision could open another front in First Amendment litigation: whether government can make free-speech or establishment-clause violations go away by just “privatizing” aspects of the dispute.
