Tuesday, November 10, 2009
I have been remiss in not including the recent Supreme Court arguments on Salazar v Buono. The case was argued on October 7, 2009 and the Justices have not yet issued a ruling. I was reminded of the case today when I read a Comment by law student David Peet (Deed of Mistrust?: The Use of Land Transfers to Evade the Establishment Clause, 59 Am. U. L. Rev. 129 (2009)). Peet basically argues that the transfer of land in this case from public to private ownership improperly evades the application of the appropriate constitutional remedy. In Salazar, the Ninth Circuit affirmed an injuction preventing the government (under the Establishment Clause) from displaying a cross on public land in the Mohave National Preserve. Congress then sold the land under the cross to a private party, who will (likely) display the cross. In October, the Supreme Court heard oral arguments on the case. Land use folks will likely be interested in the Court's determination of the legality of the land transfer to a private party given the previous injunction issued against the government.
A number of commentators have reported on the case and its implications. SCOTUS blog provides a good background treatment here. The ACS blog also discusses the case and includes a more humorous take on the oral arguments by Stephen Colbert. The discussion during oral arguments focused primarily on the land transfer and procedural questions concerning standing and the effect of previous decisions.
This case will be watched for its implications for religious displays on public and private land. May an Establishment Clause violation be cured by transferring the underlying land to a private party? We'll soon see.