The transcript of today's oral argument in Salazar v. Buono is now available online here (pdf). In many respects the dialogue sounded more like a Civil Procedure class than one on the First Amendment's church-state provisions. Few of the Justices seemed keen on ruling on either the question of the cross's constitutionality, and even fewer seemed to think the issue of standing was one they should address.
Early on, Justice Breyer distilled what he sees as the actual question before the court, one he believes is easily resolved: namely, whether enacting Congress' land transfer would violate the lower court's valid injunction. (my emphasis)
I read the injunction. The injunction says the government is enjoined from permitting the display of the Latin cross, period. Once this law takes effect and you follow it, you are violating that injunction. You don't need nine proceedings to see that. You are violating it.
Now, if you don't like the injunction because you think the statute has so changed the circumstances there is no need for it, there is a remedy. You go back to the district court and you say: Judge, change the injunction. But you haven't done that. And therefore, the only question before us is whether the Ninth Circuit is right in saying when you carry the statute into effect, you are violating this injunction, which I think no one could say you aren't.
Now, now, that — that's a very technical boring issue. I don't know why we heard this issue, but I don't see how we could reach any other issue in this case.
More excerpts in the extended post, including a back-and-forth with Justice Scalia over the question of whether a cross honors all veterans, or just the Christians among them.
The transcript of today's oral argument in Salazar v. Buono is now available online here (pdf). In many respects the questions sounded more like a Civil Procedure class than one on the First Amendment's church-state provisions.
Early on, Justice Breyer distilled what he sees as the actual question before the court, which he believes is easily disposed, namely, whether enacting Congress' land transfer would violate the court's valid injunction (my emphasis):
I read the injunction. The injunction says the government is enjoined from permitting the display of the Latin cross, period. Once this law takes effect and you follow it, you are violating that injunction. You don't need nine proceedings to see that. You are violating it.
Now, if you don't like the injunction because you think the statute has so changed the circumstances there is no need for it, there is a remedy. You go back to the district court and you say: Judge, change the injunction. But you haven't done that. And therefore, the only question before us is whether the Ninth Circuit is right in saying when you carry the statute into effect, you are violating this injunction, which I think no one could say you aren't.
Now, now, that — that's a very technical boring issue. I don't know why we heard this issue, but I don't see how we could reach any other issue in this case.
On the issue of standing, the Justices' questions seemed to suggest they do not believe that question is properly before them, because the government did not raise it in its appeal earlier. The newest member of the Supreme Court, Justice Sotomayor explains to Solicitor General Elena Kagan:
The issue is did you give up any rights to challenge any of the issues embodied in that injunction and you haven't answered why not. You may have a right, and you do, to challenge a modification of that injunction…. But you can't go back and relitigate whether he had standing to challenge that — the presence of that cross.
Similarly, Chief Justice Roberts said earlier:
…standing is different. I mean, once it's been determined that there is standing and that is reflected in a final judgment, then I think the later aspects are simply whether the person — once it's embodied in a judgment, I think that is the basis for standing and not the earlier questions of whether he visited it enough or planned to visit enough.
And when Kagan suggested it would not have been prudent to raise the issue earlier, Justices Kennedy and Ginsburg piled on:
You could have come here and said: This is such an important case Congress is taking action, and therefore, you should hear our standing argument to avoid the necessity of the Legislative Branch having to come in. You could have said that.
GENERAL KAGAN: Well, but we didn't, because we did think that Congress had acted appropriately and that the congressional act was valid, and continue to do so, continue to think that this –
JUSTICE GINSBURG: Yes, but the standing issue was independently important to the government, because the government can face this kind of question again, and if you right — if you were right on the standing point — I mean, I don't understand why the government would not have had a strong incentive to say, we want to get rid of these cases on the standing ground, we think the Court was wrong on standing.
But in any case, you didn't do that, and I think that you started your argument this morning in the right place when you said, let's talk about this law. Congress said, accepting arguendo that the Court was right, here's a law that cures the constitutional defect. And that's where you were — that's where you started your argument. Maybe you can pick up with that.
On the issue of whether the Court can consider the underlying constitutionality of the cross, Chief Justice Roberts questioned Frank Buono's representative Peter Eliasberg:
CHIEF JUSTICE ROBERTS: Have we ever said that an act of Congress is unconstitutional without a de novo review of the merits of the constitutionality?
MR. ELIASBERG: I am not aware of that, but I am also not aware of a situation where the act of Congress is being put forth as the response to an already adjudicated constitutional violation.
As the questioning begins to surround the Establishment Clause, Eliasberg argues that the context is essential, not a bright line test.
JUSTICE SOTOMAYOR: So are you alleging that doing that violates the Establishment Clause, passing or designating a religious symbol as a national memorial, that that violates the Establishment Clause?
MR. ELIASBERG: We are alleging that under the totality of the circumstances, which includes the national memorial designation, the government's asserted purpose to make sure that the cross remains up, the government's favoritism of the same parties that it has always favored in this case to the exclusion of others, and the maintaining of the property interest in the land in the form of a reversionary interest, all of those things…
And in one of the most interesting dialogues, the question of religion and the cross is raised:
JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that — is that –
MR. ELIASBERG: I believe that's actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans –
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn't seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.
MR. ELIASBERG: Well, my — the point of my — point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross. This cross can't honor us because it is a religious symbol of another religion.
Eliasberg also argues for the importance of the reversionary clause in Congress' statute that says if the memorial is not maintained, ownership of the land would return to the federal government.
…one of the government's principal arguments is when we sell to it a private owner everyone presumes that the private owner is the speaker.
But when the government maintains a substantial future property interest, they haven't sold the land. They've sold part of their interest in the land. So if you take away the reversionary interest and you remove the national memorial designation and then the VFW independently does choose to put up the cross, it's more than formalism. It is the –
JUSTICE STEVENS: But there is also the point that I don't think you stressed, that if the reversionary interest was activated — say they abandoned or destroyed it, the property would come back to the government. And if I read the — the designation of the national memorial statute correctly, the Department of Interior would have to rebuild the old cross and put it up. There's an affirmative duty to replace the cross if there is a reversion.
MR. ELIASBERG: I believe that that is correct, Justice Stevens, and that's an important point that is intertwined with the fact that the reversionary interest also continues the government's ownership in the land, when their whole position is, if we privatize it, as Justice Scalia pointed out, if it's just a private owner, then we don't associate this cross with the government. We associate it with the private owner.
But the government hasn't done that. It has maintained an important ownership interest in the land through that reversionary interest.
Justice Ginsburg raises the issue of religious symbols in other government memorials and cemeteries:
…if you prevail and you are right, what happens in Arlington Cemetery, where there's the Argonne Cross Memorial and the Canadian Cross of Sacrifice, both right here in Arlington, what happens to them?
MR. ELIASBERG: Going back, Justice Ginsburg, to the merits on the earlier question about a cross on government property, I believe that the Argonne Cross in the national — in memorial cemetery is extremely different.
There are, in the national cemeteries, the — the VA offers, to veterans and their family, a choice of putting up 39 different emblems and beliefs on their tombstones. In Arlington, there is a cross that is surrounded by a sea of tombstones with symbols of the faith of all of the different service members.
In that context, I don't think anyone would perceive that the government was favoring one particular religion because of the variety of choices and religious symbols expressed there. That's very different from a stand-alone cross of one religious symbol that is not surrounded by any other context…
