Bench Memos

Brief Comments on Salazar v. Buono

As I hope that my quick summaries of the opinions make clear, as a result of the procedural posture of Salazar v. Buono, the opinions don’t present full and direct competing accounts of Establishment Clause principles.  That said, there are stark differences between the positions taken in Justice Kennedy’s and Justice Alito’s opinions, on the one hand, and Justice Stevens’s, on the other. 

Stevens (joined by Ginsburg and Sotomayor) opines that a “Latin cross necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ” and that the display of the memorial cross on Sunrise Rock amounted to “endorsement of a starkly sectarian message.”  (Stevens op. at 1-2.)  By contrast, Kennedy (joined by Roberts and Alito), giving greater weight to context, concludes that “the cross was not emplaced on Sunrise Rock to promote a Christian message” but rather was “intended simply to honor our Nation’s fallen soldiers.”  (Kennedy op. at 11; see also id. at 11-12, 17; Alito op. at 3.)  Kennedy speaks approvingly of the land-transfer statute as “embod[ying] Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that … has complex meaning beyond the expression of religious views.”  (Kennedy op. at 13.)  Similarly, Alito lauds “the solution that Congress devised [as] true to the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.  (Alito op. at 1.) 

More generally, Kennedy and Alito, on the one hand (see Kennedy op. at 16-17; Alito op. at 6-7), and Stevens, on the other (see Stevens op. at 10-14), reach conflicting results in applying the “endorsement” test and its “reasonable observer” standard—thus providing further evidence that the endorsement test is utterly malleable and no real test at all.