Supreme Court Considers JSPAN Amicus Brief

The Court of Appeals for the 9th Circuit affirmed both Mr. Buono’s standing and the finding of a violation of the Establishment Clause (Buono I), but while that appeal was pending, Congress enacted another law, this one authorizing the transfer of the area under and around the cross to the VFW in exchange for other private property within the Preserve. It expressly incorporated into this new law its prior legislation designating the site as a National Monument and authorizing the $10,000 expenditure. The government did not seek Supreme Court review of the Court of Appeals decision. Then, Mr. Buono filed a motion with the District Court to enforce and/or modify the injunction, challenging the planned transfer of the land to the VFW. The court concluded that the transfer violated the original injunction by permitting the cross to remain on Sunrise Rock. Again government appealed and again the Court of Appeals affirmed (Buono II). The government then requested permission to appeal to the Supreme Court, which was granted as to two issues – Mr. Buono’s standing to bring the case and whether the transfer of the land to the VFW cured the Establishment Clause violation. In his brief, Mr. Buono argued that the government was precluded from seeking review of his standing in Buono I because there had been a final judgment in that case, and the time for seeking review of that judgment had long since expired. In the alternative, he argued that he did have standing and that the transfer legislation was both a violation of the original injunction and itself unconstitutional. JSPAN supported Mr. Buono in his preclusion argument, but then also addressed the merits of the standing issue and the transfer legislation. At oral argument, it seemed clear that Justices Breyer, Ginsburg and Sotomayor had serious doubts that the standing question was properly before them. Although not as forceful in their comments, Chief Justice Roberts and Justice Kennedy also seemed skeptical of the government’s argument that it was not precluded from raising the issue. Justices Scalia and Alito, on the other hand, seemed more inclined to reach the standing issue. In his usual manner, Justice Thomas asked no questions. With respect to the transfer legislation, all of the Justices (with exception of Justice Thomas) focused on the word “permitting” in the original injunction and whether by transferring the land to the VFW the government was nonetheless permitting the continued display of the cross, and separately, whether the transfer legislation was independently a violation of the Establishment Clause. During that portion of the argument, there was an exchange between counsel for Buono and Justice Scalia which was quite troubling. According to Justice Scalia: “The [cross is] erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the – the cross is the – is the most common symbol of – of – of the resting place of the dead, and it doesn’t seem to me – what would you have them erect? A cross – some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?” When Buono’s counsel pointed out that the cross is the most common symbol of the resting place of Christians and that there are no crosses in Jewish cemeteries, Justice Scalia shot back: “I don’t think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that’s an outrageous conclusion.” As counsel for Buono pointed out, that conclusion was precisely the position taken by the Jewish War Veterans in their amicus brief. The questioning by the Justices as to the transfer legislation left the impression that they might well conclude either that the transfer was not a violation by the government of the original injunction because the government was not “permitting” the continued display of the cross, or alternatively, that the transfer law was not itself a violation of the Establishment Clause. However, both as to the standing issue and the transfer legislation, it is always difficult to make any firm prediction of the outcome in the Supreme Court on the basis of what occurred at oral argument.. The standing issue is one of great concern to JSPAN. An adverse ruling on that issue would further narrow the already very limited opportunity to challenge government infringements of the Establishment Clause in court, leaving non-favored groups, including the Jewish community, at the mercy of legislative bodies and their understanding (or misunderstanding) of the Establishment Clause. Given the current composition of the Court, therefore, it may be just as well that the Supreme Court decides that the standing issue was not properly before it. We will of course issue a follow up report when the Court renders its decision.