Thursday Round-up

Yesterday’s oral arguments did generate a healthy dose of media interest in Salazar v. Buono, which asks whether a cross erected as a memorial within a California national park is constitutional.

In a New York Times piece titled “Religion Largely Absent in Argument About Cross,” Adam Liptak reports that none of the justices except Antonin Scalia pursued the question whether the cross violates the Establishment Clause’s separation of religion and state.  Instead, the discussion revolved around whether the government’s transfer of the land beneath the cross to private hands preempted any constitutional infraction.  Robert Barnes at the Washington Post notes that Salazar is the Court’s first opportunity to weigh in on the Establishment Clause under the leadership of Chief Justice Roberts.  The replacement of retired Justice Sandra Day O’Connor, who grew increasingly protective of the separation of religion and state during her tenure, with Justice Samuel Alito, who at yesterday’s argument seemed to accept the transfer of land beneath the cross to private ownership as a solution to any constitutional problem, could signal a shift in the Court’s stance.  USA Today focuses on a divide revealed during the argument between the most conservative justices on the Court, who seemed satisfied with the government’s proposals, and the most liberal, who remained more skeptical; Justice Kennedy, however, “did not tip his hand.”  The Wall Street Journal, Los Angeles Times and Christian Science Monitor offer their own coverage.  All five of the stories above highlight a testy exchange between Justice Scalia and ACLU lawyer Peter Eliasberg about the symbolism of crosses in general: Scalia remarked that “The cross is the most common symbol of the resting place of the dead,” while Eliasberg countered that the cross is “the predominant symbol of Christianity.”  NPR cleanly summarizes the history of the case and the questions at issue.

Dahlia Lithwick at Slate recounts the Salazar argument with a humorous slant.  Most remarkable for her was the uncertainty among the justices and advocates about what question the Court was addressing.  Some observers had expected the case to turn on the standing of the plaintiff Frank Buono, a Catholic, but none of the justices were inclined to reach that question.

The Washington Post editorial page opines that the cross at stake in Salazar seems “in context more a historical marker of a bygone era than a government embrace of a particular faith.”  Washington Post columnist Dana Milbank suggests that interest groups on both sides of the Establishment Clause question, like the American Civil Liberties Union and the Christian Defense Coalition, had an incentive to dramatize the First Amendment harm in order to attract attention – and money – to their causes.

Following the recent grant of cert. in the gun rights case McDonald v. Chicago, a thorough opinion piece by Michael Dorf at Findlaw discusses the Court’s Second Amendment precedents.  Dorf argues that incorporation puts conservative justices like Antonin Scalia in the unenviable position of either embracing substantive due process doctrine, as they have been reluctant to do, or incorporating the entire Bill of Rights against the states in one stroke, which could have dire practical consequences for the states.

The New York Times reports that Democrats in Congress have introduced a bill to undo the Court ruling last June in Gross v. FBL Financial Services, which held that workers bringing age discrimination suits must show that age was the decisive factor in a demotion or layoff.  Earlier this year Congress passed the Lilly Ledbetter Fair Pay Act to counter the 2007 Court ruling in Ledbetter v. Goodyear Tire & Rubber Co.

For those monitoring the Ohio death penalty controversy, Sentencing Law and Policy tracks Ohio’s move to reform its lethal injection protocols in light of the recent botched execution of Romell Broom.  Local Columbus Dispatch coverage is here.