Pay Attention to the Cross in the Doughnut Hole

March 4, 2009

Cross on Sunrise Rock (http:www.nps.gov)

The Supreme Court has decided to hear the case of Salazar v. Buono, an interesting church-state dispute - interesting in no small part because it may tell us much about the Obama administration’s approach to Establishment Clause issues.

For most of the past seventy years, there has been an eight-foot cross set atop "Sunrise Rock" in the Mojave National Preserve, which is federally owned and administered park land. (Crosses have been taken down and replaced several times during this period.) The cross is visible from a road about 100 yards away.

Back in 1996, some Buddhists figured that if Christians could have their symbol on federal land, they’d like their own, so they requested permission to erect a "stupa" or Buddhist shrine near the cross. Following receipt of this request, the National Park Service (NPS) stated it would remove the cross.

Then Congress got into the act, passing a law in 2000 stating that no federal money could be expended in dismantling the cross. A retired NPS employee then filed suit and the federal courts agreed that maintaining this cross on federal property violated the Establishment Clause and ordered it removed. Congress - determined to keep the cross and circumvent the Establishment Clause - intervened again and passed a law exchanging the one acre of land immediately around Sunrise Rock for five acres of private land elsewhere. The government then argued "no church-state issue" because the cross was now on private property.

In the next round of litigation, the federal courts were unpersuaded that the government had mooted the case by the land exchange. The U.S. Court of Appeals for the Ninth Circuit properly concluded that the land exchange was a sham transaction, whose real intent was to preserve the cross at any cost. Among other things, the court noted the land transfer was contingent, not absolute, as the government retains rights over the property, including a right of reversion if the cross is not properly maintained. The private land acquired by the government through a no-bid process was land owned by the person who had erected the cross. (The acre around Sunrise Rock was given to the Veterans for Foreign Wars - the better to argue the cross is a secular war memorial.) Finally, the court noted that a reasonable observer, especially from the nearby road, would conclude the cross was on federal property and endorsed by the federal government. As the court noted, the "land exchange… would leave a little doughnut hole of land with a cross in the midst of a vast federal preserve."

So far we have a story sadly similar to many others in recent years: government has religious symbol on public land; government argues symbol is secular; when that argument fails, government tries to circumvent the Establishment Clause through some sort of legislative shell-game.

But wait - don’t we have a new administration? The Supreme Court decided to hear the case based on a position filed by Bush’s solicitor general. There is a new sheriff in town and Obama’s solicitor general is not bound to follow the lead of her predecessor. (Elena Kagan is Obama’s nominee for this position,) Admittedly, the solicitor general will not often repudiate outright the position of his/her predecessor. This helps to preserve the fantasy that the law is above politics. In recent memory, the most notorious flip-flop between administrations occurred after Reagan became president and the Justice Department, after previously opposing a tax-exemption for Bob Jones University (on the ground that it engaged in racial discrimination), filed a brief in the Supreme Court supporting a tax exemption.

I don’t think the Obama administration will completely reverse course on the cross in the doughnut hole. That probably is too radical a step. But how it approaches the case will be a good, early indicator of its views on Establishment Clause cases involving religious symbols. For example, Obama’s SG could simply argue the land transfer resolves the issue while conceding the cross is a religious, not a secular symbol. Significantly, there is also a critical standing-to-sue issue in this case. Bush’s SG argued that Buono had no right to challenge the cross in court because he did not phrase his complaint as an objection to the cross in and of itself, but rather as an objection to maintaining the cross while excluding symbols of other religions. In other words, the Bush administration argued that the precise words one uses to phrase one’s legal claim will determine whether one can even get through the courthouse doors, regardless of whether one has a valid legal claim. Obama’s SG does not have an obligation to adhere to this extremely narrow view of standing - and she should not.

In any event, keep your eyes on this case. It will tell us a lot about how much the Obama administration differs from the preceding administration on church-state questions.