Salazar v. Buono: Sacred Symbolism and the Secular State

Bartrum, Ian | September 2, 2010

After oral argument, Salazar v. Buono looked like it might be a dud. As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause question” that gave rise to the legal controversy. But, in the intervening months, the case has gotten more and more interesting. First, most members of the Court did—in at least some way—reach the substantive merits in the decision; ironically, only Justices Scalia and Clarence Thomas would have disposed of the case on standing grounds. And second, in a twist no one saw coming, the Latin cross at the heart of the dispute disappeared just a few days after the Court announced its decision. As a result, a case that seemed doomed to founder on its awkward procedural posture has, at least fleetingly, brought the Establishment Clause back into the national spotlight. Given the complexity of the procedural questions, however, it is probably worthwhile to revisit the case’s history before moving on to the more intriguing substantive questions the Court’s opinions present.