Justice Kennedy is the only member of the Court yet to write an opinion from the October sitting. As of today, Salazar v. Buono remains the only case not yet decided from the October sitting.
The delay in Buono augurs a bitter split with lots of footnotes flying around. From the oral argument transcript, let me go out on a limb and say that Kennedy sided with the liberals on this one. Perhaps the conservatives–or, at least Scalia and Alito, by the write-ups–hoped the Court would rule more broadly than the standing issue that the rest of the justices ultimately focused upon. Or maybe the decision’s delay means that in Kennedy’s hands, the opinion did address the broader merits of whether Congress violated the Establishment Clause by transferring its ownership of a desert cross on government lands to a private entity so to avoid First Amendment suits.
Either way, perhaps the justices’ post-argument positioning triggered the Court’s December cert. grant to Christian Legal Society v. Martinez, which the justices had sat on since the spring. Wanting to make up for one (still totally conjectural) church-state loss with Buono, the conservative bloc may have sensed in CLS a big, broad win for the Free Exercise Clause.
The Court heard CLS on Monday. The justices fell to their familiar positions, but the conservatives’ (still totally speculative) gamble may have been for naught: Justice Kennedy didn’t seem at all convinced that the case’s facts had been sufficiently clarified to garner a ruling on the merits.
In the coming weeks and months, we’ll get the decisions. But whether I’m spectacularly right or wrong on what when down behind the curtain may have to wait until Justice Stevens’s papers go public. And for the sake of sating speculation, let’s hope Stevens will mimic Marshall and Blackmun‘s speedy release of their papers rather than follow Souter down the fifty-year memory hole.
The yet-to-be-scheduled case will be a double-barrel First Amendment shotgun, blasting out of one side Free Exercise Clause and freedom of association arguments, and on the other side Establishment Clause and sexuality discrimination concerns. Here’s Coyle on the case’s background:
The high court case, Christian Legal Society v. Martinez, asks the justices whether a public university law school with a non-discrimination policy can refuse to fund a religious student group because the group requires its officers and voting members to agree with its core religious beliefs, thereby excluding gay and lesbian students. [...]
Last March, the 9th Circuit affirmed a district court ruling in favor of the law school. The three-judge panel, in an unsigned opinion, said, “Hastings imposes an open membership rule on all student groups — all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.”
I can’t wait for this case–not only because it will be a Church-and-State blockbuster that will quite directly test F1@1F’s thesis, but also because it will likely take place in April. And I will gladly trade midnight April Showers for pre-dawn January Frostbite anyday.