A Cross in the Road: Salazar v. Buono and the Circuit Divide on the Establishment Clause Remedial Question
David Brewer, 58 Cath. U. L. Rev. 813 (2009)
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This Comment examines and analyzes the split between the Ninth and Seventh Circuits. Part I.A. reviews the Supreme Court’s current Establishment Clause jurisprudence, starting with its modern origins in Lemon v. Kurtzman and continuing to its recent disjointed application. Part I.B. then addresses the inconsistent Establishment Clause remedial analysis that flows from the Court’s cacophonous broader jurisprudence. It does so by examining the substantive issues surrounding the split between Salazar v. Buono from the Ninth Circuit and Freedom from Religion Foundation, Inc. v. City of Marshfield and Mercier v. Fraternal Order of Eagles in the Seventh Circuit. Next, Part II employs the issues to critique the weaknesses of the Ninth Circuit’s holding in light of the Seventh Circuit’s strengths. Here, this Comment focuses on the scope of the “unusual circumstances” doctrine, the Supreme Court’s public function jurisprudence, the notion of deference to governments, and the reasonable observer standard. Finally, Part III examines other remedial options, and then concludes by encouraging the Court to bring clarity, flexibility, and fairness to its ever-evolving Establishment Clause jurisprudence by adopting a presumption of effectiveness to remedial land transfers.
