The ACLJ is pleased that the Supreme Court of the United States agreed to review the decision of the United States Court of Appeals for the Ninth Circuit in Salazar v. Buono, a case involving a challenge to a memorial cross displayed in the Mojave National Preserve. The case will affect the legal standing of those who seek to challenge government displays that include symbols with some religious significance as well as the government’s ability to cure actual or potential Establishment Clause violations through a sale of land to private parties.

Over 70 years ago, the Veterans of Foreign Wars (VFW) built a cross to memorialize fallen service members in a remote area that is now part of a federal preserve. After the National Park Service denied a request to build a Buddhist shrine near the cross in 1999 and declared its intent to remove the cross, Congress designated the cross and an area of adjoining property as a national World War I memorial.

A former Parks Service employee challenged the government’s maintenance of the memorial on Establishment Clause grounds. As a practicing Roman Catholic, the plaintiff did not object to the cross itself; rather, his objection was ideological, as he thought that the area should be turned into a public forum open for private groups to build a variety of monuments.

After the district court held that the federal government’s display of the cross violated the Establishment Clause, Congress directed the Department of the Interior to convey one acre of property that included the memorial to the VFW in exchange for a five-acre parcel of equal value. It is common for government actors to sell property containing symbols with religious significance to private parties in order to cure an actual or potential Establishment Clause violation.

In response, however, the United States Court of Appeals for the Ninth Circuit held that the sale of the property to the VFW did not cure the alleged violation of the Establishment Clause because the land could revert back to the federal government if the site ever ceases to be used as a war memorial. When the court denied the government’s petition for a rehearing en banc, five judges dissented and noted that the Ninth Circuit’s decision was in conflict with decisions of the Seventh Circuit regarding the government’s authority to sell land to cure an Establishment Clause violation. The dissenters also stated that the cross has the secular purpose of memorializing fallen soldiers.

The Government’s Petition for a Writ of Certiorari included the following two questions:

1.         Whether respondent has standing to maintain this action where he has no objection to the public display of a cross, but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols.

2.         Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands.

The ACLJ is preparing to file an amicus curiae brief in support of the government’s position.

The legal issues involved in this case are similar to an ACLJ case currently pending before the Supreme Court.  At issue in both is the constitutionality of religious displays, as well as governments’ ability to sell land with religious displays to private groups. The ACLJ case, Summum v. Duchesne is being held pending the decision in the Summum v. Pleasant Grove City.  I argued the Pleasant Grove case before the Supreme Court on November 12.

You can read a short posting that I wrote about this case on The Hill blogsite, a popular blog on the legal and political issues of the day.  Click here.