Guest: Dan Eaton, attorney, Seltzer Caplan McMahon Vitek
ST. JOHN: I'm Alison St. John. The mount Soledad cross has become a legal test case nationally after the meaning of the establishment clause of the constitution. It's one of the longest running lawsuits in the United States over the separation of church and state. This week's decision by the U.S. Supreme Court not to hear the case leaves the matter unresolved. But observers do say it's now closer to resolution. Here in studio, we have Dan Eaton to help us grasp for what this means for the cross, which has stood on that hill for over 60 years now.
EATON: It's good to see you Alison.
ST. JOHN: The cross, is it on federal land at this point?
EATON: It is. Concourse took it over back pursuant to a law that was enacted, so it was transferred to the federal government, and the federal government paid for it, and so it goes.
ST. JOHN: So now who brought the case that ended up in the ninth circuit court of appeals?
EATON: Well, ultimately, the case was brought by a citizen of San Diego who claimed that the cross there offended the establishment clause, want clause in the constitution that says that the government cannot establish a particular religion. And said, look, this transfer to the federal government is illegitimate and offends the first amendment. So the San Diego federal judge said no it doesn't. Under the federal constitution, the cross is perfectly appropriate. And the ninth circuit said no, as currently configured, the cross is too dominant and does offend the establishment clause. The federal government wasn't happy with that, was sued, and appealed to the United States Supreme Court and asked it to accept a review.
ST. JOHN: What's your feeling about the U.S. Supreme Court's decision not to weigh in on the mound Soledad cross? So tell us about this ruling.
EATON: Well, it wasn't really a ruling. The Supreme Court said it's too early for us to weigh in. The ninth circuit didn't say specifically what ought to be done with the cross site. All it said was as it's currently configured, it offends the establishment clause of the United States constitution and sent it back to the San Diego federal judge to figure out what the appropriate remedy would be given what the ninth circuit found. What the Supreme Court did yesterday was it essentially said after all of that it taken care of, and after the lower court, the San Diego federal judge, and the ninth circuit, decide what the establishment clause requires with respect to the site, then come back and see us, and maybe we'll accept review. But it's too early. That's why it's significant that the U.S. Supreme Court unanimously decided not to accept review at this point.
ST. JOHN: So could they ask the federal government to take it down?
EATON: Oh, yes! And I expect that will happen based on the ninth circuit's ruling. It seemed to suggest that the cross in its current dominance cannot stand. Then it would be appealed presumably to the ninth circuit if they stand by their earlier review and like the remedy, they are going to say, yes, that's right. Then you can expect another appeal to the U.S. Supreme Court who will ultimately decide whether the cross as it's currently configured is appropriate and does not offend the establishment clause of the United States constitution.
ST. JOHN: So there is nobody other than the U.S. Supreme Court who can finally settle this case. So it has to go through another cycle and come back to the Supreme Court again. What would be different about the next time?
EATON: Well, it could be -- you said a couple of things that were very interesting. Of it could happen that the Supreme Court could decide not to accept review at all. You could have the possibility -- which I don't see happening, if one side or the other, essentially giving up. But you're right, the Supreme Court will ultimately have the final say one way or the other about when this case ends. I will say it that way.
ST. JOHN: Well, how could -- what level of court could reach an end point if the U.S. Supreme Court decides it's not going to deal with it?
EATON: Then the ninth circuit ruling would be the final word. But my point is that the Supreme Court has freedom as to what cases it's going to decide. And it may decide to look after what the ninth circuit ultimately does, which I don't see ending until somewhere around 2013 at the earliest, the Supreme Court could say we're not going to accept review of this case, and the ninth's circuit ruling would stand.
ST. JOHN: Would stand. Okay, so what do you see happening in this next round? What remedies, what recourses could happen next?
EATON: Well, based on my review of the ninth circuit's ruling, I see judge burns, assuming it goes back to the judge who had it the first time, particularing out a way to reconfigure the site in a way that it doesn't establish the clause. Assuming that requires some element of the cross coming down, then you can see it going back up to the ninth circuit with the federal government appealing say no, we think the cross as it stands doesn't offend the establishment clause. Assuming the ninth circuit says no, the cross in its current state has to come down, you can see it going back up to the Supreme Court, at least a request for the Supreme Court to review it. Will they review it? If they don't, are the 9th circuit ruling stands. If it does, then we have to find out what the Supreme Court ultimately decides to do and whether or not that cross site offends the establishment clause.
ST. JOHN: Remind us specifically what the establishment clause says, and what they could do to perhaps alter how the cross stands.
EATON: Well, it essentially says Congress shall make no law with respect to the establishment of religion. That has subsequently, especially in the second part of the last century, been construed by the Supreme Court to establish something of the separation of church and state. Ultimately it's a question of the law of separation of church and state. The Supreme Court is going to have to say how high that goes, with respect to whether that cross as its currently configured can stand.
ST. JOHN: Now, the majority opinion base their decision on what?
EATON: The majority opinion in?
ST. JOHN: In the U.S. Supreme Court. ?
EATON: Well, the U.S. Supreme Court did not issue an opinion as such. All nine justices said we're not going to accept review right now. Most of the time, they just note here. Here instead, justice Alito, who was part of the nine justices, issued a separate statement said we are not ruling on the merits. And the ninth circuit didn't say specifically what had to happen. All we are saying is it is too early for us to accept final review of this matter. And that's what Alito's separate statement emphasized.
ST. JOHN: And to be more specific, have you heard about what kind of things there might be proposed that would allow the cross to -- change its configuration? You're saying they can't take it as it currently is configured.
EATON: Right. No specific rules that I've heard. The 9th circuit said it was not deciding the question of whether a cross of some size could be part of the site. That question wasn't before it. It's hard to see how any of those proposals include the 40-foot cross as it's currently configured standing. And that's where the future determination of the Supreme Court ultimately will have to come in.
ST. JOHN: So when you're standing around the watercooler with your colleagues, in ten years, will that close be there?
EATON: I think it depends on the future configuration of the Supreme Court itself. You're looking at 2013, 2014, who is going to be on the Supreme Court? That could affect what ultimately happens with the mound Soledad site.
ST. JOHN: Interesting. So maybe even how we vote --
EATON: Yeah, that's a nice way of dodging, saying I'm not making any guesses.
[ LAUGHTER ]
ST. JOHN: Let's move onto another issue that the U.S. Supreme Court did make a ruling on this time. The court said Monday that a mandatory scheme, which sentences juvenile offenders to life without the possibility of parole, is unconstitutional. So tell us about the combined cases that the Court ruled on.
EATON: Well, it's important for you to focus on that mand store scheme. The 2 cases came out of Alabama and Arkansas, involved juveniles who were involved in one way or another in a murder. And they were sentenced under mandatory schemes in these jurisdictions because they were tried as adults to life without parole. The question before the Supreme Court was whether a mand store sentencing scheme which requires juveniles to be sent away with life without parole was unconstitutional under the cruel and unusual punishment clause. And what the Supreme Court held was that it was unconstitutional. The mandatory sentencing scheme wassup constitutional.
ST. JOHN: They were quite interesting cases, weren't they? They involved people aged 16? 18?
EATON: 14. Both of them were 14 years old. And that factored into the court's opinion because the Court relied on earlier rulings which said the death penalty was inappropriate for juveniles, and life without parole for nonhomicide cases was inappropriate for juveniles. Now they said what if it's homicide? Can juveniles be sentenced to a mand store sentencing scheme that will send them away for the rest of their life? And the U.S. Supreme Court said no, they could not under the cruel and unusual punishment clause. But interestingly, they did leave open the possibilities that juveniles can be sent away without the possibility of parole.
ST. JOHN: Oh.
EATON: What they said though is that has to be subject to an individual determination
ST. JOHN: I see. So it's sort of leading the judge with some discretion.
EATON: Or the jury to make determination that this particular type of punishment is appropriate in the circumstances. Justice Kegan said you couldn't have a mand store scheme that sent them away for the rest of their lives, because juveniles are immature, they are subject to evolution, all kinds of influences, character is not fully formed in will you're in your '20s. As a matter of common sense and science said, and justice Kegan, said you could not mandate that they could be sent away.
ST. JOHN: And what were the dissenting opinions?
EATON: Boy, there were some really angry dissenting opinions! Justice Samuel Alito took the rare step of reading part of his decent from the bench. The lead dissenting opinion which was joined by all four conservative justices, said, look, this is not an -- it does not offend the 8th amendment cruel and unusual punishment clause for legislatures to decide that certain crimes if juveniles commit them should be subject to life without the possibility of parole. Shower, let's cob seed, said Roberts, that science suggests that they're immature and evolving and so on. But so what? This is a policy determination that the state legislatures ought to be free to make T. Does not offend the cruel and unusual punishment clause of the 8th amendment, are and the Court goes too far when it intrudes in the legislature's right to make those kinds of policy decisions.
ST. JOHN: Okay. But do you think that's any sense here that this ruling is part of a trend away from mandatory sentencing because of the fact that our jails are overcrowd, and there may be many people in jail who shouldn't be there?
EATON: It's interesting if you look at it from the mandatory sentencing standpoint, when you read justice Kegan's opinion, the focus is very much on the juvenile aspect of the situation, and how juveniles ought properly to be treated. But essentially, in this opinion, she says no, a mandatory sentencing that sends a juvenile away for life is not appropriate, even if the juvenile is convicted of murder.
ST. JOHN: So chief justice Roberts seemed to suggest that although juveniles were less mature and responsible than adults, legislatures should be able to impose the hardest sentencing. Is that because of the states' rights issue?
EATON: Exactly right. And let me read from his dissenting opinion, perhaps science and policy suggest we should show greater mercy to young killers, but that is not our decision to make as a Supreme Court. Neither the text of the constitution nor our precedent requires that juvenile murderers be committed to life without parole. I respectly decent.
ST. JOHN: And there were some who felt like even justice Kegan's opinion was not going far enough.
EATON: Yes, another said absent of showing that there was some sort of an intent to kill on these convicted murderers, they couldn't be sentenced to life without the possibility of parole, even with individualized consideration of the facts of their particular crime.
ST. JOHN: You were talking about states' rights. Do you know how many states this will affect?
EATON: The opinion talked -- I believe the number was 29 states that have these mandatory sentences of life without parole.
ST. JOHN: Including California?
EATON: I don't believe California is one of them.
ST. JOHN: We don't have that?
EATON: I don't believe that. I didn't actually check that. But I don't believe that California is one of them. You can expect that Alabama and Arkansas are probably representative of the kind of states that have that, and that's no knock against the south at the all. It's just --
ST. JOHN: A different culture.
EATON: That's right. Right now, those mandatory sentencing schemes offend the 8th amendment of the constitution according to the majority of the Supreme Court.
ST. JOHN: But it does affect a lot of individuals, about 2,500 individuals are serving life without parole prison sentences for crimes committed when they were younger than 18.
EATON: And those sentences will have to be revisited because -- if they were sentenced according to a mandatory sentencing scheme, the Supreme Court has said those are unconstitutional. So you can expect that the lawyers for those individuals are going to go in and ask for a review of the sentences to have their sentences reviewed. That's actually what happened here. The lawyer for one of the individuals here saw the Supreme Court ruling on a related case and said no, no, wait a minute. My client shouldn't be subject stoa mandatory sentencing without possibility of parole.
ST. JOHN: Okay, well, thank you.
EATON: And Thursday is the big day. The healthcare and stolen valor act, whether Congress can make it a crime to brag about Congressally conferred medals that you didn't win. Thursday is going to be one of the most days in Supreme Court history. Fireworks are going to come to the Supreme Court in the week before the 4th of July.
ST. JOHN: Yeah, the way we get our healthcare in the future is dependent upon it. So thank you so much.
EATON: Thank you, Alison.