Salazar v. Buono - A Hypothetical

Fri Apr 30 08:22:06 PDT 2010

I appreciate the discussion of this issue that we've had over the past two weeks, and I'd just like to add three points that have not been raised so far.

First, a factual question about the record.  If Frank Buono was offended only by the fact that the cross was on public land, then why does he continue to object to the cross if the land becomes privately owned?  Is he objecting to the fact that a reasonable observer may think that the cross is on private land?  If so, does it matter that the reasonable observer is wrong?  Or is Buono objecting to the events by which the land switched from public to private ownership?  I'm not asking how any of us would answer those questions, but rather if anyone knows of Buono's actual beliefs. 

Second, with respect to the claim of government endorsement, I described this case to my thirteen-year-old daughter last night, and her immediate response was that the government must disfavor Christianity if they relegate the cross to where no one sees it in the desert.  I (and my daughter) realize that there are many other ways in which Christianity enjoys a more favorable position in our society, but it is a nice reminder about that the fact that this is in the middle of the desert may count for something.

Third, while the cross dispute has been occurring in one part of the Mojave National Preserve, another legal fight is developing on the eastern side of the preserve.  Two weeks ago, the Bureau of Land Management issued a supplemental draft environmental impact statement for a large solar power project that has been proposed on federal land just outside the preserve: http://www.blm.gov/pgdata/etc/medialib/blm/ca/pdf/pdfs/needles_pdfs/isegs0.Par.68554.File.dat/Supplemental-DEIS-IvanpahSolar.pdf.  One of the primary objections to the project is its impact on "visual resources," to wit, the presence of a large number of industrial-looking structures will interfere with the scenic viewshed enjoyed by visitors to the preserve.  So recognizing the very different legal regimes, which sight is likely to be more offensive to more people:  the cross or the solar power project? -- John 

John Copeland Nagle
John N. Matthews Professor
Notre Dame Law School
Notre Dame, IN 46556
(574) 631-9407
nagle.8 at nd.edu 
Publications:   http://ssrn.com/author=339625 
Website:  http://law.nd.edu/people/faculty-and-administration/teaching-and-research-faculty/john-copeland-nagle 
Nature photography: http://community.shutterfly.com/gallery/aboutme/start.sfly?alias=JohnN96  

----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
Sent: Friday, April 30, 2010 11:00 AM
To: Kermit Roosevelt; Christopher Lund
Cc: Claudia; conlawprof at lists.ucla.edu
Subject: Re: Salazar v. Buono - A Hypothetical

This issue of private vs. public (governmental) responsibility for religious speech occurs repeatedly.   In Lynch, the city's Christmas display was on private land.  In Allegheny County, the creche display had been contributed by the Holy Names Society, but it was on display in the courthouse.  Santa Fe of course recreates the problem, as does every public high school valedictorian who wishes to lead the class in prayer or utter religious sentiments.  Think about license plates with privately chosen logos which the state must approve (e.g., St. John's Church, with a drawing of a steeple, including a cross.) In a public forum, the speech is properly attributed to private parties (Widmar, etc.), though unattended displays can raise issues of misattribution (Pinette).  But we know from Summum that permanent, unattended displays on public land are government speech.  So the cross in the Mojave National Preserve was government speech, whether or not private parties placed it ther!
 e.!
  And we know the government refused to make the Preserve a forum.  So if -- before the transfer -- a reasonable observer (I hate this test, but it's what we're playing with for now) would perceive the cross in the Preserve as creating religious insiders and outsiders, the government should lose and the cross should come down. Offense at the removal may be very disturbing to people -- like flag-burning or cartoons of Mohammmed - but (Breyer in Van Orden notwithstanding) court-ordered removal as a remedy for constitutional violation is NOT a matter of constitutional significance -- how can it possibly be?  Think desegregation. 

So the only question reasonably left in Salazar is the one on remand -- whether the transfer to the VFW absolves the government of responsibility for the speech.  That, to me, is much closer than the pre-transfer question.  Reasonable people can differ on whether the transfer cures the problem,  and they can do so without recrimination and ill will.  

By the way, Claudia Haupt, a Fellow here at GW, has a very good article, forthcoming in the Tulane L. Rev,  on this general problem of when religious speech is or is not properly attributed to the government.  I don't know if it's on SSRN yet.

Chip

Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

---- Original message ----
>Date: Thu, 29 Apr 2010 19:34:52 -0400
>From: conlawprof-bounces at lists.ucla.edu (on behalf of Kermit Roosevelt <krooseve at law.upenn.edu>)
>Subject: Re: Salazar v. Buono - A Hypothetical  
>To: Christopher Lund <ed9034 at wayne.edu>
>Cc: "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>
>
>Santa fe v. Doe would suggest not, right?
>
>
>Kermit Roosevelt
>Professor of Law
>University of Pennsylvania Law School
>3400 Chestnut St.
>Philadelphia PA 19104
>215.746.8775
>
>On Apr 29, 2010, at 5:59 PM, "Christopher Lund" <ed9034 at wayne.edu>  
>wrote:
>
>> So I'm reading the opinion and interested in Justice Alito's  
>> conclusion
>> that the land-transfer statute properly cures any potential  
>> Establishment
>> Clause problem.
>>
>> Here's a hypothetical I wanted to raise for the list.  (I hope it's  
>> apt --
>> I'm trying to isolate the privatization issue and put it in another
>> context -- but if it's not, I'm sure someone will tell me.)
>>
>> A public school district asks for student volunteers to lead prayers  
>> in
>> the classroom.  The prayers are for our soldiers abroad in Iraq and
>> Afghanistan.  Let's say two students, Samantha and Charlie,  
>> volunteer and
>> lead those prayers.  There's a lawsuit.  The practice gets struck down
>> under Engle v. Vitale, Treen v. Karen B., Lee v. Weisman, and so  
>> on.  The
>> school says it has a plan to fix the problem.  It says that it will no
>> longer ask Samantha and Charlie to lead prayers.  Instead, Samantha  
>> and
>> Charlie will simply have a minute to speak however they want  
>> relating to
>> the wars in Iraq and Afghanistan.  Samantha and Charlie, now free to  
>> say
>> whatever they want, say that they will continue to offer prayers.
>>
>> Has the school district fixed the problem?
>>
>> Best,
>> Chris
>>
>> ___________________________
>> Christopher C. Lund
>> Assistant Professor of Law
>> Wayne State University Law School
>> 471 West Palmer St.
>> Detroit, MI  48202
>> lund at wayne.edu
>> (313) 577-4046 (phone)
>> (313) 577-9016 (fax)
>> Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>>
>> _______________________________________________
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>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
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