A Huge Flap Over a Small Cross

[WSJ_law_blog]

Tomorrow, down at the High Court, the justices will hear arguments in one of the highest-profile First Amendment cases of the term: Salazar v. Buono.

The case involves whether a cross erected in a national preserve in California to honor veterans violates the Establishment Clause of the Constitution. The case has an odd and complicated procedural history, and the questions presented have not only to do with the Constitution, but with standing — who has the right to mount a challenge to government action.

As eloquently presented by the folks over at Scotusblog:

The Supreme Court has given itself two choices to resolve a decade-old controversy over a Christian cross that stands on an isolated acre in the desert, amid the vast 1.6 million acres of the Mojave National Preserve in San Bernardino County in southeastern California. . . .

The Court can end the controversy by ruling that the only challenger . . . had no right to file his case. That . . . is . . . a question of deep consequence for those who oppose religious symbols. That’s because the underlying question is: what kind of harm must such an opponent show before being allowed to seek a remedy in court?

Or, the Court can decide whether Congress, stubbornly defending such a religious symbol’s place on public property, can get around the constitutional question by simply transferring the site to a private buyer, thus leaving the symbol intact where it is. That outcome of the case likely will have wide impact on a variety of statutes and other monuments with religious themes that stand on government property, in cemeteries, parks and elsewhere. Many tributes to war veterans, for example, use religious imagery. Several veterans’ groups, in fact, told the Court in this case that “without action by this Court, countless veterans memorials will perish.”

For more on the case, in advance of the argument, we suggest you take a look at our conversation earlier today with Jones Day’s Meir Feder, who has argued before the Supreme Court and taught the Supreme Court clinic at NYU School of law (He also served as a law clerk to the retired Justice Souter.)

Furthermore, we’d be remiss in not mentioning the week-long point/counterpoint on the case nicely packaged by the LA Times. They’re calling the feature “Dust-Up,” and in each of four exchanges, UC Irvine professor Erwin Chemrinsky faces off against Joseph Infranco, an attorney with the Alliance Defense Fund. It’s a great read, in our opinion, and works well we think both for non-lawyers and con-law geeks alike.