• Salazar v. Buono: Something Only a Lawyer Could Believe
  • May 6, 2010 | Author: Kendall M. Gray
  • Law Firm: Andrews Kurth LLP - Houston Office
  • I can no longer find the quote, but I heard it said somewhere that the definition of a "legal fiction" is "something only a lawyer could believe."  I could not avoid that impression upon reading Salazar v. Buono (pdf), decided Tuesday by the Supreme Court of the United States.

    At issue?  According to Justices Kennedy and Alito: two lengths of four inch pipe, painted white and arranged in the shape of a cross, erected 10 miles from the nearest highway in a portion of the Mojave desert owned by the federal government that exceeded the combined area of the Nation's five smallest states and that was "likely . . . seen by more rattlesnakes than humans." The pipe sparked four lower court opinions to the effect that such pipes "establish" a religion, which, once established could not be cured by Congress passing a law to transfer the land into private hands for continued maintenance as a monument to "the Great War."

    Why?  According to Justice Scalia: Because Mr. Buono was "deeply offended by the display of a Latin Cross on government-owned property" but had "no objection to Christian symbols on private property."

    Hemmed in as they were by Mr. Buono's first final judgment, for which Supreme Court review was never sought, the Supreme Court could not reach the merits of whether such a display "established" a religion or whether Mr. Buono's "deep offense" was a sufficient injury to "make a federal case" out of it.  Nevertheless, the Court devoted 71 pages of judicial contretemps in six opinions concerning whether Mr. Buono's Constitutional right not to be "deeply offended" survived the Congressional transfer of the land to the Veterans of Foreign Wars.

    And they remanded to the District Court for further proceedings on the transfer of the land with the lengths of four inch pipe.

    Now, don't get me wrong.  I don't discount real establishment clause issues as unimportant or simplistic.    I was at just such an argument the very day this case came out.  But is Buono how we should be expending our judicial resources as Plaintiffs or as Defendants or as Courts?  Especially in a case where no Establishment Clause precedent is even possible?

    Chief Justice Roberts' concurring opinion said it best.  This is not surprising, because it was also the shortest.  I reproduce it here in full:

    At oral argument, respondent’s counsel stated that it “likely would be consistent with the injunction” for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them,with the VFW immediately raising the cross again. Tr. of Oral Arg. 44. I do not see how it can make a difference for the Government to skip that empty ritual and do what Congress told it to do—sell the land with the cross on it. “The Constitution deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).

    (Emphasis added).

    For all the post-opinion-learned-head-cogitation on my television, there is very little "there" there.  Whether one's own culture war scruples emphasize "establishment" or "free exercise," the substance of those protections is cheapened for both sides when the alleged injury and the substantive controversy are something only a lawyer could believe.