The recent U.S. Supreme Court decision in Salazar v. Buono, a case involving a Latin cross placed on federal land in the Mojave Desert by the Veterans of Foreign Wars, approaches what many would assume to be the central issue in the case from an oblique. Does the Mojave Desert cross, sitting atop Sunrise Peak in a federal park preserve, violate the Establishment Clause of the First Amendment? Neither Justice Kennedy’s plurality opinion nor any of the concurring or dissenting opinions in Salazar answers that question. Salazar’s complicated web of facts and procedural history precluded the Court from resolving the most compelling issue in the Salazar litigation. Instead, most of the opinions in Salazar circle the merits of the constitutionality of the Mojave Desert cross in language ostensibly directed at the remedy—the land transfer statute enacted to preserve the cross—but arguably aimed at the cross itself. On a charitable view, the plurality, concurring, and dissenting opinions simply make the best of the facts and law given the tortured path of the case through the lower courts. But it is not folly to speculate that a different path would have presented cleaner issues for decision and resolution, and would have given some closure to the litigants involved. Perhaps most important, a decision on the merits of the constitutionality of the Mojave Desert cross could have clarified the trajectory of the Supreme Court’s Establishment Clause doctrine for future cases.
