Sometimes things aren’t what they appear to be. Such was the case of Salazar v. Buono at the Supreme Court today.

Attorneys from the ACLU, which represented Frank Buono in his challenge to a Christian cross atop a rock in the Mojave desert, Americans United for Separation of Church and State, and the AHA’s Appignani Humanist Legal Center were concerned that the Court might use this case to further restrict a person’s right to sue based on unwelcome contact with an inherently religious symbol on government property.

The good news is that the Court appears to want to sidestep this issue—thus continuing to permit such establishment clause challenges (for the present).

Instead, the Court appears poised to settle the case on the narrower issue of whether to affirm the 9th Circuit’s affirmation of an injunction ordering removal of the cross and preventing the land underneath the cross to be transferred to the Veterans of Foreign Wars under an Act of Congress.

Based on the vibrations I sensed during oral arguments and familiarity with past decisions of the Supreme Court, the outcome of the case appears to me too close to call with Justice Kennedy a swing vote, Justices Stevens, Breyer, Ginsburg and Sotomajor likely to vote to enforce the injunction ordering the cross to be removed, and Chief Justice Roberts and Justices Scalia, Thomas, and Alito voting to allow the land transfer to proceed so that the Christian cross may remain on the land.

In my opinion some justices, such as Justice Scalia, just don’t see Christian favoritism as a problem under the First Amendment. Clearly, they don’t enter through the front door, for high above it says: “Equal justice under the law.”