Illuminating though it was, Wednesday’s decision in the case, Salazar v. Buono, No. 08-472, settled very little. It did overturn a trial court’s order rejecting a Congressional solution to an earlier ruling that the cross conveyed the constitutionally impermissible message of government endorsement of religion in violation of the First Amendment’s establishment clause. But the Supreme Court did not rule on the solution itself and instead returned the case to the lower courts for reconsideration.

Image A war memorial in the Mojave Desert, shown in 2009, is at the center of a constitutional debate. For now, it is covered by a box. Credit... Henry and Wanda Sandoz/Liberty Legal Institute, via Associated Press

The first ruling, on the core First Amendment question, was not before the Supreme Court. Instead, the justices considered a federal law enacted in reaction to the first ruling that called for the government to transfer the acre of land on which the cross sits to private hands. In a second round of litigation, the lower courts ruled that the law was an unlawful effort to evade the first ruling.

Justice Kennedy wrote that those recent decisions were too glib in failing to consider the government’s dilemma.

“It could not maintain the cross without violating the injunction,” he wrote, “but it could not remove the cross without conveying disrespect for those the cross was seen as honoring.”

He added, “The land transfer-statute embodies Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause has complex meaning beyond the expression of religious views.”

But Justice Kennedy, in a part of his opinion joined only by Chief Justice Roberts, did not uphold the land-transfer law outright. Instead, the court sent the case back to the trial court for another look in light of the analysis in Wednesday’s decision.

In a concurrence, Justice Alito said there was no need for further proceedings and that he would have upheld the law.