Mary Jean Dolan (The John Marshall Law School) has posted Salazar V. Buono: The Cross Between Endorsement and History (Northwestern University Law Review Colloquy, Vol. 105, p. 42, 2010) on SSRN. Here is the abstract:
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Despite its procedural complications and six opinions, Salazar v. Buono provides some potential insights into the Supreme Court’s evolving approach to religion in the public square. Competing approaches have stressed either preserving history or avoiding government endorsement of religion. This Article analyzes a potential new synthesis which is suggested by Justice Kennedy’s plurality opinion and Justice Alito’s concurrence in the judgment.
The Mojave Cross case involves a war memorial erected in 1934 by WWI veterans on remote federal land, in what later became the Mojave Desert Preserve. In the first round of litigation, the lower courts had found an Establishment Clause violation and enjoined display of the cross. Before the Supreme Court was the validity of a statute transferring the land to the VFW. The plurality remanded to the district court, strongly suggesting that the transfer would end any appearance of government endorsement of religion.
The Kennedy and Alito opinions can be viewed as describing an expanded endorsement test, which takes the “reasonable observer” one step further along the “endorsement test continuum,” by adding another contextual factor to be considered. Both Justices suggested that privatization of a longstanding religious-historical symbol, when done to avoid showing disrespect for military sacrifice, is unlikely to be viewed as a government endorsement of religion. Given the realistic threat that the Roberts’ Court will adopt an undiluted historical approach, this Article shows the potential resiliency of endorsement-style contextual analysis, and whether the Salazar v. Buono version can be reconciled with the test’s equality rationale.
