Barry, it was good to see you today.  I always enjoy an opportunity to sit next to you during oral arguments at the Supreme Court – especially with a case like the one we witnessed today. 

As we both know, this case is closely watched and involves the display of an 8-foot cross on a mountain top in California’s Mojave Desert – a memorial honoring war veterans.  The case is Salazar, Secretary of the Interior, et al., v. Buono. (08-472)

Like most of these cases, the Justices were divided on this issue.  And, Justice Kennedy, who is often the deciding vote in these church/state cases, said little to reveal how he will vote on this case.

The fact is that just because a group is ‘offended’ by the presence of a display doesn’t make it unconstitutional.  As you know, the origins of this case go back 70 years – when the Veterans of Foreign Wars built a wooden cross honoring the war dead.

And, in our amicus brief, in which we represent 15 members of Congress, we argue what many of the Justices understand – this challenge has no place in federal court. 

Our brief asserts:  “This case is only the most extreme example of a phenomenon that has plagued the federal courts for the past three decades. Ideologically motivated citizens and public interest groups search out alleged Establishment Clause violations, almost always in the form of a passive religious symbol or display of some sort, and make a federal case out of offense at the display.”

We also make the argument that those who are offended by government speech or displays should not be permitted to use an Establishment Clause claim to seek relief in federal court.  “The basis for standing is typically that the religious display offends the sensibilities of the plaintiffs,” the brief argues.  “The offense may be characterized as an affront to religious values, or as one in which plaintiffs feel stigmatized as political or community outsiders.  But the sum and substance of the injury is that the display bothers the plaintiffs.”  We also contend that the lax rules governing who can sue under the Establishment Clause are not consistent with the Constitution and separation of powers doctrine.

Yes, the Justices engaged this issue today during oral arguments. And like most of these cases, it is likely to be a close vote.  But in the end, I believe we will see a divided Court uphold the constitutionality of this display. 

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