In the Mojave National Preserve in California, among the yucca and Joshua trees, a plywood box contained a six and a half foot white cross, erected to honor the dead of World War One. The box had been built to cover the cross after a coalition that included the American Civil Liberties Union, Jewish and Muslim veterans and others objected to the Christian symbol on federal land. Defenders of the cross, including veterans groups and the national government, claimed that the cross was a historic, secular tribute, and the original plaque from the 1930s said it had been erected to honor "the dead of all wars."
Although veterans groups claimed that the cross served a secular purpose, it had also been the site of Easter sunrise services, and then in 1999, the Park Service denied the application of a Buddhist group to build a shrine nearby. Park officials also recognized that whatever may have been the secular purpose in erecting the cross, it remains the prime symbol of Christian faiths. After both a federal district court and the Court of Appeals for the Ninth Circuit ruled that the cross violated constitutional standards, Congress acted, and, in order to avoid taking the cross down, designated the site the country's only official national memorial to the dead of World War One, thus adding it to an exclusive group of national treasures that include the Washington Monument and Mount Rushmore. It also offered to transfer one acre in the preserve on which the cross is situated to private hands in return for five acres of privately held land elsewhere in the preserve.
The case, Buono v. Salazar, gave the Roberts Court its first opportunity to deal with what the First Amendment means when it says "Congress shall make no law respecting an establishment of religion." In oral argument the justices appeared uncomfortable, and seemed to be looking for a narrow way out that would avoid broader Establishment Clause issues. Only Antonin Scalia seemed interested in wanting to address the question of when religious displays on public land violate the First Amendment. The other justices wanted to know if the land transfer was legitimate, because if so, that would be a way out without having to reach other matters.
In the end, by a 5–4 vote, the Court ducked the issue, and ordered the federal court in California to look again at congressional plans to transfer the land on which the cross is situated into private hands. The district court had originally ruled the land transfer insufficient, because the cross would still be located in the middle of a national preserve. According to Justice Anthony Kennedy, "Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten." Admitting that it was "certainly a Christian symbol, the cross was not placed on Sunrise Rock to promote a Christian message. Rather, those who erected the cross intended simply to honor our nation's fallen soldiers."
In dissent, Justice John Paul Stevens agreed that soldiers who died in battle deserved a memorial, but the government "cannot lawfully do so by continued endorsement of a starkly sectarian message."
Altogether, six justices wrote separate opinions, and only Chief Justice Roberts joined fully in the Kennedy opinion, although Scalia, Thomas, and Alito agreed that the case should be sent back to the lower court. There it seems likely that no matter what the ruling is, it will be appealed, and could once again wind up in the high court.
In a second religion case that also implicated the right of free association, Christian Legal Society v. Martinez, the Court heard a challenge to a decision at the University of California's Hastings College of Law to deny official recognition to the Christian Legal Society because the student group did not conform to the school's requirement that membership and leadership positions be open to all. The Hastings chapter, like that at other schools, required members and officers to sign a statement of faith that vowed devotion to Jesus Christ and impliedly barred membership to those with a "sexually immoral lifestyle." Recognized student groups may use school rooms for meetings and student funds for their activities. The Court took the case because the Ninth Circuit, which upheld the Hastings policy, conflicted with a Seventh Circuit decision involving the same group. In Christian Legal Society v. Walker, the Seventh Circuit held that the Christian group's message would be weakened if it were forced to accept members who did not agree with its beliefs, thus violating its First Amendment right of free association.
Law school organizations backed the Hastings non-discrimination policy. Both the Association of American law Schools and the Society of American Law Teachers filed amicus briefs, noting that non-discrimination policies such as those at Hastings, which were not directed at any particular group, also helped to protect other minorities, such as gays and lesbians. Altogether, the case drew some thirty-eight amicus briefs, an unusually large number, with groups like the American Civil Liberties Union, American Jewish Committee, and Americans United for Separation of Church and State supporting Hastings, while the American Islamic Congress, the Council of African-American Pastors, and several states backed the Christian Legal Society.
Oral argument turned heated, and several of the justices wanted to know whether it was an "all-comers" policy that would also require a Republican club to admit Democrats, or did it have the effect of singling out religious groups as the only ones that may not exclude non-adherents? If the latter then it clearly violated the Constitution, although Stanford Law professor Michael McConnell, representing the Christian group, argued strenuously that even an all-comers policy was unconstitutional in terms of free association. This argument, however, elicited such a flood of questions that McConnell could not elaborate on his premise.
In this case Justice Kennedy joined with the liberal wing of the Court to sustain the Hastings policy. In an opinion by Justice Ruth Bader Ginsburg, the 5-4 majority held that the Christian Legal Society could not seek both official recognition by the school and refuse to abide by its policies. The Society, she wrote, "seeks not parity with other organizations, but a preferential exemption from Hastings' policy." In the past the Court had been concerned when public universities based recognition on a group's viewpoint, but Hastings had solved that problem with its all-comers policy. "It is, after all, hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers." Since the Society had stipulated early on in the litigation that open membership was the law school's policy, its claim that the policy discriminated against religious groups was "unseemly."
In a sharply worded dissent, Justice Samuel Alito called the decision "deeply disappointing," and would now give state universities "a handy weapon for suppressing the speech of unpopular groups." He also accused the law school of enforcing its policy selectively to target the Christian Legal Society. Chief Justice Roberts and Justices Scalia and Thomas joined the dissent.