Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction despite the fact that the land was now technically “private.” After the Ninth Circuit Court of Appeals affirmed the decision, the Supreme Court intervened and, in Salazar v. Buono, held that the district court erred by declaring the land-transfer invalid.
This Essay critically analyzes Buono and argues that the plurality failed to appreciate the remedial significance of the challenge to the land transfer. The plurality, it seems, attempts to re-litigate the Establishment Clause violation, though res judicata stood as a formal procedural barrier to making that determination. In so doing, I argue, the Court put form over substance by remanding the case, and ignored the “essential command” of the Establishment Clause—government neutrality. To make my case, I draw on political theory to clarify the concept of neutrality, and propose a novel way of thinking about Establishment Clause remedies by drawing on decisions considering the extent of Congress’ Section 5 Enforcement Power under the Fourteenth Amendment. I conclude by trying to blur the sharp distinction the plurality draws—and accepts—between public and private space. Buono is a significant case, but not because it adds to or clarifies the classically confusing Establishment Clause jurisprudence (it doesn’t). Instead, Buono is significant because, practically speaking, it reminds us of the how important remedial efficacy is when attempting vindicate fundamental rights.
- Establishment Clause,
- Constitutional Litigation,
- Civil Rights
Available at: http://works.bepress.com/david_owens/4/