AP reports that the Supreme Court "appeared divided between conservatives and liberals Wednesday over whether a cross on federal park land in California violates the Constitution."
Justice Anthony Kennedy, often the decisive vote in these cases, said nothing to tip his hand.
The tenor of the discussion suggested that the justices might resolve this case narrowly, rather than use it to make an important statement about their view of the separation of church and state.
What, though, would count as a "narrow" resolution here? Hopefully the AP's Mark Sherman – who doesn't suggest what that might look like – isn't referring to a ruling on more technical grounds, like the plaintiff's standing. A decision there could have sweeping ramifications and would not at all be narrow, in the sense of applying only to this case.
[UPDATE: Calling it a "case of disappearing issues," Lyle Denniston gives some additional analysis of today's hearing, explaining how the church-state issue and the standing concern both seemed to be placed on the back burner:
As the case of Salazar v. Buono (08-472) reached the Court, it looked like a significant new test of such displays, of who could challenge them, and of how the government could react if told to take them down. But, after an hour of oral argument, only the last of those was still in play, and it appeared to have been pared down to its specific facts, with few if any wider implications.
…
Despite strenuous efforts by Justice Antonin Scalia to keep alive the core question of whether the cross display was a violation of the Constitution’s Establishment Clause, the dominant sentiment on the bench seemed to be that that was no longer open to review.
If the issue they decide is really how the government may respond once ordered by a court to take down the cross, then this really will be a narrowly crafted ruling, perhaps with implications for Congress, but not for the larger church-state questions of monuments and standing.]
More once the transcript is released. Check back.
