Salazar v. Buono: The Perils of Piecemeal Adjudication

Abstract

The recent U.S. Supreme Court decision in Salazar v. Buono, a case involving a Latin cross placed on federal land in the Mojave Desert by the Veterans of Foreign Wars, fails to squarely address what many would assume to be the central issue in the case. Due to a procedural glitch in the history of the case, Salazar does not decide the merits of whether the Mojave Desert cross, sitting atop Sunrise Peak in a federal park preserve, violates the Establishment Clause of the First Amendment. Nonetheless, several of the opinions in Salazar address the issue of whether the land transfer statute enacted to preserve the cross violates the district court’s injunction against display of the cross on federal land. Those opinions occasionally pierce through to the merits of the Establishment Clause issue and provide some insight into the possible direction of the Court’s future monuments and symbols cases. In this essay I argue that Salazar suggests a move toward accommodation in the Court’s Establishment Clause doctrine, although Salazar does little to elucidate the concept of accommodation.