February 23, 2009

Roberts Court's First Shot at Establishment Clause

Today the Court granted cert to decide whether an eight-foot-tall cross can stand in a national preserve to honor fallen soldiers.  The relevant history of the case is as follows, 
At issue is an eight-foot-tall cross in the Mojave National Preserve in San Bernardino County. A smaller wooden cross was first erected by the Veterans of Foreign Wars in 1934 and was originally maintained as a war memorial by the National Park Service.

The American Civil Liberties Union objected to the cross and filed a suit on behalf of Frank Buono, a Catholic and former Park Service employee. The suit noted that the government had denied a request to have a Buddhist shrine erected near the cross.

Two years ago, the U.S. 9th Circuit Court of Appeals ruled for the ACLU and declared the cross an "impermissible governmental endorsement of religion."

Congress had intervened at one point to save the cross. It ordered the Interior Department to transfer to the VFW one acre of land where the cross stood.

The 9th Circuit judges were unswayed, however. This "would leave a little donut hole of land with a cross in the midst of a vast federal preserve," wrote Judge Margaret McKeown.

Bush administration lawyers appealed to the Supreme Court last fall and said the "seriously misguided decision" will require the government "to tear down a cross that has stood without incident for 70 years as a memorial to fallen service members."

The government also questioned Buono's standing to challenge the cross, since he lives in Oregon and suffers no obvious harm because of the Mojave cross.

In a friend-of-the-court brief, the VFW, American Legion and other veterans groups said the 9th Circuit's ruling, if allowed to stand, could trigger legal challenges to the display of crosses at Arlington National Cemetery and elsewhere.
The case could reshape the doctrine in this area as Justice O'Connor, known for her propensity to craft tests in this area, often cast the swing vote in religion cases, whereas Justice Alito, her replacement, has been a stalwart in the conservative camp.