From Substance to Shadows: An Essay on Salazar v. Buono and Establishment Clause Remedies
Boston University Public Interest Law Journal, Vol. 20, p. 289, Forthcoming
24 Pages Posted: 8 Jun 2010 Last revised: 18 Apr 2012
Date Written: October 1, 2011
Most disputes about the Establishment Clause center on its substantive meaning; whether, for example, a state subsidy promotes religion, the phrase “In God We Trust” can appear on currency, or a display of the Ten Commandments is unconstitutional. Often overlooked and lurking behind these substantive disputes is a question about what remedies are available when an Establishment Clause violation is found. Typically, an injunction prohibiting the subsidy, practice, or display is the choice. In Salazar v. Buono, however, the Supreme Court was confronted with an unusual case for two reasons. First, the doctrine of res judicata formally barred the Court from reaching the substantive finding that a Latin cross on federal property violated the Establishment Clause. Second, because the district court had declared invalid a federal statute transfering the land to a private party, and--unable to address the substantive ruling--the Court was forced to address the law of remedies in an *290 atypical posture. Reversing the lower courts, in Buono a plurality of the Court held that the district court erred when it invalidated the land transfer.
This Essay critically analyzes Buono and argues that the plurality failed to appreciate the remedial significance of the challenge to the land transfer. The plurality, it seems, attempted to re-litigate the substantive Establishment Clause violation despite the res judicata bar. In so doing, I argue, the Court put form over substance and ignored the essential command of the Establishment Clause--government neutrality. To make my case, I draw on political theory to clarify the concept of neutrality, and propose a novel way of thinking about Establishment Clause remedies by drawing on decisions considering the extent of Congress's Section 5 Enforcement Power under the Fourteenth Amendment. I conclude by trying to blur the sharp distinction the plurality draws between public and private space. Buono is a significant case, but not because it contributes to or clarifies the law regarding the Establishment Clause. Instead, Buono is significant because it demonstrates how important remedial flexibility is to ensuring rights, while at the same time exemplifying the perils of remedial formalism.
Keywords: Establishment Clause, Remedies, Civil Liberties, Salazar v. Buono, First Amendment, Constitutional Law
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