I haven’t read the opinion yet — or I should say, all six opinions, because the concurrences and dissents interweave to create the result in Salazar v. Buono. It would appear that the cross can remain up, so if the only thing you care about is the result, that’s likely what’s going to happen. I say likely but not certainly because the matter has been remanded for further fact adjudication, but the signal from Justice Kennedy is that to him, there are some contexts in which a cross is not reasonably understood to be a religious symbol but rather a symbol commemorative of death or, more accurately, a memorial of the dead.
For what it’s worth, I don’t think that is an unreasonable position. I’m not entirely sure I agree with it — a Jewish cemetery, for instance, is devoid of crosses — but on the other hand I cannot think of a non-religious symbol that occupies a similar place in our overall culture as the cross for use to symbolize the concept of in memoriam. We might use the grim reaper, a scythe, a skull and crossbones, or something else to refer to death and dying, but as a call to remember the deceased, about the only thing that is as immediately evocative that I can think of as a cross would be the round-top tombstone, and that seems somehow less dignified than a cross.
So if what it really comes down to is, “Hey, it’s a war memorial and you’re going to find crosses at war memorials,” I suppose I can live with that. But given that there are six opinions and no majority decision at all, the reality of what we’re seeing in Salazar v. Buono is akin to the mess that was made of race discrimination law after Bakke v. U.C. Regents. What I’m really looking for in Salazar is the question of whether Justice O’Connor’s “Endorsement Test” is still viable or whether a minimum of five justices affirmatively stated that they were abandoning that approach adopted by a majority of the Supreme Court in Doe v. Santa Fe Unified School District.
And I have some significant law and motion practice going on all this week, the culmination of several months’ worth of work, so I really haven’t as much time as I would like to read new con law cases for pleasure. I’ll just have to leave that to the academics. But it does look like the cross can stay up. If you are driving between Baker and Las Vegas, and you just exactly where to look, you can see it, way, way, wa-a-a-a-ay off in the distance from the freeway should you stop at that rest stop just north of Baker.
And if you’re celebrating the likely retention of the cross, consider this: The government gets to put up and maintain crosses only when some combination of nine amateur art critics accredited with law degrees decide that, in context, the crosses lack religious significance. If I were a Christian, I’d be moderately unsettled at the idea that the fundamental symbol of my religion was deemed to lack religious significance.