Law Review: Salazar v. Buono: Sacred Symbolism and the Secular State

Salazar v. Buono: Sacred Symbolism and the Secular State
Ian Bartrum, Drake Law School, 105 NW. U. L. REV. COLLOQUY 20 (2010)

Although the procedural issues are certainly interesting in their own right, I want to explore several of the substantive implications of the Court’s decision. The opinions give rise to two particularly interesting questions—one doctrinal, the other more prudential and structural. Doctrinally, as Salazar is the first Establishment Clause case decided since Justice Sandra Day O’Connor’s retirement, it offers the first actual glimpse into the future of her pet “endorsement” test—and its future seems, to me, to be in some doubt. Second, Justice Kennedy’s lengthy discussion of the secular purposes behind the government’s efforts to preserve the cross memorial raises—for me, at least—troubling questions about the Court’s increasing desire to strip sacred symbols of their religious meaning and significance. If this is in fact happening, I suggest it is evidence that we have lost sight of one of the fundamental purposes of religious disestablishment—protecting religion from the state’s destructive power. But I begin with the doctrinal question.