The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] in Salazar v. Buono [Cornell LII backgrounder; JURIST report] that the lower courts were wrong to ban government from transferring public land containing a religious symbol to a private entity. The court also held that an individual has Article III [text] standing to bring a suit under the Establishment Clause [Cornell LII backgrounder] of the First Amendment challenging the display of a religious symbol on government land. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the transfer of the public land to a private entity is not a permissible accommodation. Authoring the plurality opinion for a deeply divided court, Justice Anthony Kennedy reversed the decision below:
Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality. The same respect requires that a congressional command be given effect unless no legal alternative exists. Even if, contrary to the congressional judgment, the land transfer were thought an insufficient accommodation in light of the earlier finding of religious endorsement, it was incumbent upon the District Court to consider less drastic relief than complete invalidation of the land-transfer statute.Justice Samuel Alito filed a concurring opinion. He would not have remanded the case to the district court. Justice Antonin Scalia also filed a concurring opinion, joined by Justice Clarence Thomas. Scalia believes that the plaintiff lacks standing. Justice John Paul Stevens filed a dissenting opinion, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Stephen Breyer filed a separate dissent.
The dispute concerns a Latin cross on a rock outcropping in the Mojave National Preserve [official website]. The display of the cross on public property had already been found in violation of the Establishment Clause, so the government sought to transfer the portion of land on which the cross was located to a private entity.