By Marci A. Hamilton, Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University
So often, cases at the Supreme Court disappoint, because the media has followed the backstory, as it is called, but the Court has in its sights more technical issues. Its recent decision in Salazar v. Buono is further evidence of this phenomenon.
It is understandable why the media would focus on the backstory - a cross was erected by the Veterans of Foreign Wars 70 years ago to honor World War I fallen soldiers. It is located in the on Sunrise Rock in the Mojave National Preserve in San Bernardino County, California. In 2001, Frank Buono, filed suit against the Secretary of the Department of the Interior on the grounds that the cross violates the separation of church and state. The District Court held it was unconstitutional and entered an injunction ordering that it not be displayed. This is when it gets entertaining, because Congress enters the picture.First, Congress designates the cross as a national memorial. Then it bars federal funds from being used to dismantle federal memorials. Then it enters into a "land transfer" deal with the VFW, which provides that a small plot surrounding the cross's base is to become private while the federal government gets a small piece of the VFW's land. The District Court ruled that the land transfer was unconstitutional and the Ninth Circuit affirmed twice.
If this order of events sounds familiar, it should. After the Ninth Circuit declared that the inclusion of "under God" in the Pledge of Allegiance violated the separation of church and state, members fell over each other rushing outside the Capitol to place their hands over their hearts and loudly recite the full Pledge of Allegiance, "under God" and all. When the Elk Grove Unified School Dist. v. Newdow case got to the Supreme Court, the Justices granted certiorari, but then apparently got cold feet, because they avoided the Establishment Clause issue entirely and decided the case on a dubious interpretation of state law and standing doctrine.