It was quite a morning for the First Amendment at the Supreme Court, as the justices handed down a major church-state decision and heard oral arguments in a case testing issues of free speech, the right to petition, and the right of privacy.
It was an historic morning for another reason: barring the unforeseen, it was Justice John Paul Stevens' final day of hearing oral argument as a justice. From now until the Court adjourns at the end of June, the justices will hand down decisions in already-argued cases but will not sit to hear new arguments. By the calculation of John Barrett, professor at St. John's University School of Law, Stevens probably saw his first oral argument on Oct. 13, 1947, the first day of arguments when he was a law clerk for Justice Wiley Rutledge -- more than 62 years ago.
The Court's decision today in Salazar v. Buono marks another victory for advocates of government accommodation of religion. The Court's splintered 5-4 decision had the effect, at least for now, of upholding the federal statute passed in 2004 that was aimed at allowing a Christian cross erected to honor World War I veterans to remain amidst federal land in California. The law transferred the land immediately surrounding the cross to a nearby Veterans of Foreign Wars chapter, but an injunction previously issued barring the cross remained in effect in spite of the law.
Justice Anthony Kennedy, announcing an opinion that was joined fully only by Chief Justice John Roberts Jr., said the lower court had taken "insufficient account" of the congressional enactment, and sent the case back. "Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message," Kennedy wrote. Justice Samuel Alito Jr. wrote separately to assert that the case did not need to be remanded, while Justices Antonin Scalia and Clarence Thomas joined in another opinion arguing that Frank Buono, who originally challenged the cross, had no standing to do so.
Stevens wrote a sharp dissent, stating that the desire to honor the war dead does not justify the government's "continued endorsement of a starkly sectarian message." Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Stevens in dissent, while Justice Stephen Breyer wrote a separate dissent, stating that the case should have been dismissed.
In Doe#1 v. Reed, the case argued today, the justices considered whether the names of those who signed a petition for a referendum in Washington state should be made public under the state public records law, or whether the disclosure would violate signers' rights of privacy, association, and speech. Scalia seemed, perhaps surprisingly, to be strongly supportive of disclosure of the names. "Running a democracy takes a certain amount of civic courage," said Scalia. He was countering arguments that disclosure would expose petition signers to threats and intimidation because the referendum sought to overturn a state law that expanded rights given to domestic same-sex partners. James Bopp Jr. of Bopp, Coleson & Bostrom in Indiana argued against disclosure and Washington Attorney General Robert McKenna argued in favor.
More on both cases later today at nlj.com.