In Print: Volume 89: Number 5
Salazar v. Buono: The Failed Landmark Case and its Illustration of the Two Sides of Plurality Opinions
By Daniel Joseph Bass
89 Wash. U. L. Rev. 1135 (2012)
A simple Latin cross, placed on an outcropping of rock in the Mojave Desert, became the center of much controversy in 1999. The cross had stood since 1934 when the Veterans of Foreign Wars (VFW) placed it to memorialize the deaths of soldiers in World War I. The land was part of the Mojave National Preserve, which contains 1.6 million acres of land, including privately owned portions and portions which belong to the State of California. This mismatch of private and state ownership is sporadically positioned throughout the otherwise federally owned preserve. Though the cross was located on a federal portion of the land, its presence had gone unquestioned in terms of legality, despite frequent campers in the area and annual Easter Sunrise services that occurred nearby since 1935. However, when permission was denied regarding the placement of a Buddhist stupa near the cross, the cross’s long presence in the desert was finally called into question. A flurry of letters between the National Park Service (NPS), the American Civil Liberties Union (ACLU), and private parties quickly made it apparent that a resolution would not occur outside of the legal system. What followed was a legal suit by a long-term employee of the park to have the cross removed from the government’s land in the Mojave National Preserve. This suit resulted in a series of legal actions that led all the way to certiorari before the Supreme Court.
Salazar v. Buono represented a focal point in religious display cases, not only looking for a new remedial answer to unlawful religious displays, but also offering a new look at older holdings. Salazar v. Buono and cases preceding it offered an opportunity for the Supreme Court to revisit their previous religious symbol display cases, and led many academics to believe a clarification of Establishment Clause jurisprudence as a possible holding in the case. However, as early as the oral arguments, it became immediately apparent that the case was not likely to be the landmark decision or drastic departure the case could have been. As such, the case seemingly became just another in a long stream of plurality opinions written by the Supreme Court in more recent years. But, the decision was not wholly without substantive value itself, offering an opportunity to explore the judicial value of plurality decisions generally. Salazar v. Buono can still offer great insight into the future of religious display cases. Moreover, the multiple opinions authored by the Supreme Court Justices offer clues into the perspectives of those Justices sitting on the Court at the time the case was decided.