U.S. Supreme Court Allows Transfer of Mojave War Memorial Cross

Religious Institutions Update

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The United States Supreme Court recently issued an opinion in Salazar, et al. v. Buono, 130 S. Ct. 1803 (2010), that has ramifications for future litigation of Establishment Clause questions. The case presented questions relating to an individual’s Article III standing to assert an Establishment Clause challenge to the transfer of a cross on federal land to a private entity in exchange for noncontroversial land.

In a splintered opinion, the Supreme Court reversed a Ninth Circuit opinion affirming the district court’s order enjoining a transfer of land upon which the cross was situated. The procedural history of the case was particularly complicated, and the multiple separate opinions from the Supreme Court produced no clear holding. As a result, Buono leaves unsettled the scope of Article III standing in cases involving the Establishment Clause and the scope of the Establishment Clause in cases involving the public display of religious symbols. As noted by Justice Kennedy, in his plurality opinion announcing the Court’s judgment: “To date, this Court’s jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules.” Thus Buono underscores the divergent opinions of the Justices and the unsettled nature of the law both as to the question of Article III standing to raise an Establishment Clause challenge and the legal standards under which such a challenge should be assessed.

Background and Result

Buono centers on a roughly eight-foot tall cross on Sunrise Rock in a remote part of the Mojave Desert. In 1934, the Veterans of Foreign Wars erected the cross as a memorial to the soldiers who died in World War I. Although the cross was on federal land, it was originally built by private citizens and maintained by a private citizen who owns land nearby. The plaintiff, Frank Buono, is “a retired Park Service employee who makes regular visits to the Preserve,” who often drives near Sunrise Rock, and who can see the cross from a nearby road.

The case reached the Supreme Court after multiple procedural steps, and involved several statutes passed by Congress both before and in response to the litigation.

• 2001: Before any of the litigation had begun, Congress included in an appropriations bill a provision forbidding the use of government funds to remove the cross. Consolidated Appropriations Act, 2001, Pub. L. 106-554, § 133, 114 Stat. 2763A-230.
• 2002: Buono filed suit in the Central District of California, claiming a violation of the Establishment Clause because of the presence of a religious symbol on federal land. While the suit was pending, Congress designated the cross and the land around it as a national memorial. Dep’t of Defense Appropriations Act, 2002, Pub. L. 107-117, § 8137(a), 115 Stat. 2278. Buono nevertheless prevailed in the end, on cross-motions for summary judgment. (Buono I) The court ruled that the cross had a “primary effect” of advancing religion, which violated the standard put forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The court issued an injunction forbidding the display of the cross. Buono, slip op. at 4.
• 2002: Three months after the decision in Buono I, Congress passed legislation forbidding the use of federal funds to remove the cross. Dep’t of Defense Appropriations Act, 2003, Pub. L. 107-248, § 8065(b), 116 Stat. 1551.
• 2004: The Ninth Circuit affirmed the district court’s judgment both as to Mr. Buono’s standing under Article III and on the merits. (Buono II) The government did not seek certiorari, so the judgment and permanent injunction became final.
• 2004: While the appeal was pending, Congress passed a statute directing the Secretary of the Interior to transfer the land on which the cross stood to a private organization, the Veterans of Foreign Wars, so long as the property was maintained as a memorial. In return, the government would receive a comparable amount of land from the private citizen who had last maintained the cross. Although the land-transfer statute was passed while the appeal pended, the Ninth Circuit did not opine as to how it might affect the appeal.
• 2005: Buono went to the district court to prevent the land transfer ordered by Congress. The district court invalidated the land transfer, holding that the land transfer violated the injunction because it was an effort to keep the cross atop Sunrise Rock. (Buono III)
• 2007: The Ninth Circuit affirmed Buono III, and denied an en banc rehearing over dissent. (Buono IV)

At the Supreme Court, the case generated multiple separate opinions, but no opinion for the Court. Justice Kennedy announced the judgment of the Court and wrote for himself, Chief Justice Roberts (who joined in full), and Justice Alito (who joined in part). The plurality opinion concluded that Buono had standing to enforce the injunction that he had obtained previously, that the district court erred in enjoining the transfer of land, and that the case should be remanded for a determination whether the land-transfer statute cured the violation of the Establishment Clause.

Justice Alito concurred in the judgment, but concluded that the land-transfer statute cured any Establishment Clause violation and thus no remand was necessary. Justices Scalia and Thomas also concurred in the judgment, concluding that Buono had no standing to expand the original injunction to prohibit the transfer of land from the federal government to the VFW. Chief Justice Roberts issued a short concurrence emphasizing the “empty ritual” of complying with the injunction by tearing down the cross, then transferring the land to the Veterans of Foreign Wars so the cross could be rebuilt.

Justice Stevens wrote a dissenting opinion joined by Justices Ginsburg and Sotomayor. He concluded that Buono had standing to sue, and that in his view, the statute did not cure, and in fact only perpetuated, the Establishment Clause violation. Justice Breyer wrote a separate dissent, in which he concluded that there was no federal question presented in this case because the judgment under review should be affirmed entirely based on the law governing injunctions. As a result, he would have dismissed the writ of certiorari as improvidently granted or affirmed the Ninth Circuit’s decision.

Analysis

Standing

Seven Justices concluded that, under the specific facts of this case, Buono had standing under Article III. Justice Kennedy’s plurality opinion did not address whether Buono had standing initially to challenge the display of the cross but concluded that Buono had standing to enforce the injunction he was awarded by the district court initially. Buono, slip op. at 8, citing Allen v. Wright, 468 U.S. 737, 763 (1984). According to Justice Kennedy, “[h]aving obtained a final judgment granting relief on his claims, Buono had standing to seek its vindication.” Justice Kennedy ruled that it was too late to contest whether Buono had standing in the original suit because the original judgment had been affirmed on appeal and the government did not seek review in the Supreme Court. As a result, the plurality did not address whether Buono had standing to obtain the original injunction or whether he had independent standing to challenge the land transfer separate and apart from the injunction he won previously.1

Justices Scalia and Thomas, by contrast, maintained that Mr. Buono had no standing under Article III because they viewed his suit as an attempt to expand the scope of the injunction that he had obtained previously. Id. at 1-2 (Scalia, J., concurring). According to Justice Scalia, the original injunction merely called for the removal of the cross, Buono’s second suit asked for the court to bar the government from enforcing a statute transferring the land where the cross stood to a private organization, for which Buono independently would have to demonstrate standing under Article III. Id. at 3-4 (Scalia, J., concurring).

Injunction

On the merits of the case, five Justices concluded that the district court’s order enjoining the land transfer was erroneous, whereas the other four Justices would have affirmed. Justice Kennedy’s plurality opinion refused to characterize the land transfer statute as an attempt to evade the injunction, and considered it to be a valid congressional response that would accommodate the complex nature of the symbol while complying with the spirit of the injunction to get the cross off of government land. Id. at 11-13. The congressional enactment changed the circumstances sufficiently that the district court’s prospective remedy was no longer appropriate. Id. at 14. Chief Justice Roberts’s concurrence emphasized the “empty ritual” of forcing the government to tear down the cross before it could transfer the land—although, unlike Justice Scalia, he posited that the VFW might raise the cross again immediately. Id. at 1 (Roberts, C.J., concurring). Justice Scalia, along with Justice Thomas, would have set aside the injunction because, as noted, Buono lacked standing to challenge the land transfer. Id. at 1 (Scalia, J., concurring).

Justice Stevens disagreed because, in his view, the transfer of land would still “permit” the display of the cross, which violates the plain terms of the injunction. Id. at 6-7 (Stevens, J., dissenting). The ongoing violation would be perpetuated by the very fact of the special legislation itself, which continues government endorsement of the cross and preserves its display. Id. at 9 (Stevens, J., dissenting). Likewise, Justice Breyer would have affirmed the injunction without regard to Establishment Clause jurisprudence because he believed that the district court had authority, under the law of injunctions, to enforce its prior order.

Remand

In terms of the remedy, only two Justices voting to reverse the judgment explicitly supported a remand of the case to the Ninth Circuit for further proceedings. Justice Kennedy’s plurality opinion argued that the district court did not evaluate Buono’s injunction request properly in terms of a modification, rather than a straightforward enforcement, and that it would need to take up the question whether the land transfer statute independently violated the Establishment Clause. Id. at 16-18. Chief Justice Roberts, given his short concurrence, seemed to join this reasoning, although he did not do so specifically. See id. at 1 (Roberts, C.J., concurring).

Justice Alito specifically rejected a remand back to the Ninth Circuit. He reasoned that the factual record had been developed sufficiently to be able to hold that the statute would not violate the Establishment Clause. Id. at 1-7 (Alito, J., concurring). For him, the symbol of the cross was sufficiently complex that no endorsement could be perceived, especially after the land transfer was effected. Id. at 5-7 (Alito, J., concurring). Justices Scalia and Thomas did not reach the issue of remand because they would have found that the plaintiff lacked standing to bring the suit at all. Id. at 1-7 (Scalia, J., concurring).

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The Buono decision underscores the unsettled nature of law governing the public display of religious symbols under Establishment Clause. Because of the complex procedural history of the case, a majority of the Court did not announce the standards that would govern whether a litigant has standing to pursue a challenge under the Establishment Clause or the substantive standards that would be applied to determine whether government conduct violated the Establishment Clause with respect to the display of religious symbols.

1 Both Justice Stevens’s lead dissent (joined by Justices Ginsburg and Sotomayor) and Justice Breyer’s separate dissent agreed with the plurality’s reasoning on standing. Id. at 4 & n.2 (Stevens, J., dissenting); 2 (Breyer, J., dissenting).

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