Salazar v. Buono

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Argued October 7, 2009.

Authorship: Lyle Denniston of SCOTUSblog

Docket: 08-472

Issue: Whether an individual has Article III standing to bring an Establishment Clause suit challenging the display of a religious symbol on government land and if an Act of Congress directing the land be transferred to a private entity is a permissible accommodation.

Contents

Briefs and Documents

Oral Argument

Transcript (October 7, 2009)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Oral Argument Recap

Analysis

Haggling over what issues are actually before them, the Supreme Court Justices turned a major case on the constitutionality of religious monuments on government property into what seemed like a mere shadow of its former self. As the case of Salazar v. Buono reached the Court, it looked like a significant new test of such displays, of who could challenge them, and of how the government could react if told to take them down. But, after an hour of oral argument, only the last of those was still in play, and it appeared to have been pared down to its specific facts, with few if any wider implications.

The case of the Christian cross standing alone in the midst of a huge federal land preserve in a California desert put before the Court the latest in a continuing series of controversies over religious commemoration in public places. Lower federal courts had found the cross’s presence there unconstitutional, and barred enforcement of an attempt by Congress in 2004 to shift ownership of the site into private hands in a bid to save the cross. The federal government took the case to the Supreme Court to protest those rulings.

Despite strenuous efforts by Justice Antonin Scalia to keep alive the core question of whether the cross display was a violation of the Constitution’s Establishment Clause, the dominant sentiment on the bench seemed to be that that was no longer open to review. And despite efforts by U.S. Solicitor General Elena Kagan to get the Court to focus on whether a former park service officer had any right to sue to test the display, that, too, seemed to be beyond the Court’s reach. Kagan, in fact, had to endure lectures by several of the Justices that the government should have tested that question earlier in the case and so had now missed its chance.

The Solicitor General, and a California civil liberties lawyer on the other side, Peter J. Eliasberg, found themselves compelled to pore over the details of Congress’s response to the lower court rulings, rather than arguing broad constitutional principles. The effect was to significantly shrink even the remaining issue in the case.

Kagan insisted that those details showed that Congress only wanted to keep a “war memorial” on the site, which only incidentally was a religious symbol, so there was no basis for blocking the land transfer; it cured any constitutional problem. Eliasberg countered that those details showed that Congress had singled out a single religious faith for favoritism, gave that cross a monumental status that few other iconic structures get, did not actually forfeit its interest in keeping the Mojave cross standing on Sunrise Rock, and thus remained in a continuing constitutional violation.

While the Justices showed a lively interest in those details, that, too, simply reinforced the impression that the case no longer ranked on the grand scale of potential precedents of sweeping impact. Large questions of separating church and state tended to get lost in close questioning about a “reversionary interest” the government has in Sunrise Rock, and about what kinds of signs the National Park Service might put up on or near this cross to make it seem like the display was conveying someone else’s message, rather than the government’s.

Justice Scalia spent considerable effort in trying to keep the argument on the constitutionality of the cross’s display. He said the government had no obligation, just because it put up a monument to one faith, to have other monuments on the same site to other faiths. In fact, he said, the Mojave cross was a commemoration of the service of soldiers of all faiths, including Jews and Muslims. Scalia said it was “outrageous” to suggest otherwise.

Justice Samuel A. Alito, Jr., suggested that the Court should take the government at its word, that Congress had washed its hands of the cross and had remedied whatever Establishment Clause problem its presence on public land had caused. Echoing the Solicitor General’s core argument, Alito said Congress’s only interest was in maintaining a war memorial.

Beyond those two, however, the remaining Justices who took part (Justice Clarence Thomas remained silent) raised questions and made comments in what sounded much like a seminar on federal court jurisdiction and the meaning and scope of court injunctions. In the few moments when the members of the Court discussed the merits of the case, they simply bypassed the right-to-sue issue and the validity of this particular display, choosing instead to analyze the legal effect of the steps Congress took to protect the display from its challengers.

Pre-Argument Articles

Argument Preview

The Supreme Court will hear argument at 10 a.m. Wednesday in Salazar v. Buono (08-472). U.S. Solicitor General Elena Kagan, in her second argument in her new post, will represent the government and Interior Secretary Ken L. Salazar, as well as others. Peter J. Eliasberg of Los Angeles, the managing attorney for the ACLU Foundation of Southern California, will be making his first Supreme Court argument, representing Frank Buono, the challenger to the Christian cross that stands in the Mojave National Preserve in California.

The Supreme Court returns to its elusive pursuit of clarity about the constitutionality of placing religious symbols on public property in a case that is complicated by questions over who has a right to challenge such displays and over Congress's power to protect such a symbol by transferring it to private hands.


Background

The Mojave National Preserve is a massive tract of land -- about 1.6 million acres, or 2,500 square miles -- in California's San Bernardino County. About ninety percent of it is federally owned. On top of an outcropping known as "Sunrise Rock," in a remote site on federal land, there is a Christian cross. It can be seen from about 100 yards away as one motors along Cima Road. It is modest in size, no more than eight feet tall. It, like several earlier versions that preceded it, serves as a memorial to individuals who have died in military service. The original cross was put up in 1934 by the Veterans of Foreign Wars.

That little monument is now the centerpiece in the latest controversy to reach the Supreme Court on the constitutionality of erecting, or maintaining, a distinctly religious symbol on government land or in public parks. It is a subject that, over the years, has produced an uncertain set of constitutional standards that make it quite difficult to suggest, in advance, which symbols will pass, and which will be forbidden. This latest controversy also raises the fundamental question of who may come to court to contest the legality of such monuments to faith.

The Sunrise Rock cross has had its own legal history. In 1999, the National Park Service was asked to allow a dome-shaped Buddhist shrine to be put up near the cross. Citing a regulation that bars any commemorative installation in a national park area without headquarters permission, the Service denied the request. In doing so, the Service noted the presence of the cross, and commented that "it is our intention to have the cross removed."

Studying the issue further, NPS officials decided that the property did not qualify as a historic place to go on the National Register of such sites, partly because the site is used for religious purposes. Religious groups have held Easter Sunrise services at the cross for more than 70 years. In 2000, Congress stepped in, denying the use of any federal funds to take down the cross. Shortly after, Congress gave the cross designation as a national memorial honoring World War I veterans. A new plaque noting the sponsorship of the VFW was ordered installed at the site.

In March 2001, Frank Buono, a resident of Oregon who said he regularly visited the Preserve (where he previously had served as an assistant superintendent), filed a lawsuit challenging the cross. He indicated that, as a Roman Catholic, he is not offended by a Christian cross, nor was he even offended by a religious symbol on government property if the site were open to other permanent displays. He said that, on future visits to the Preserve, he would avoid the cross. A federal judge barred the cross after ruling that Buono was entitled to challenge it because its presence subjected him to an unwelcome religious display.

The primary effect, the judge found, was to advance religion, in violation of the Constitution's Establishment Clause. The Interior Department appealed to the Ninth Circuit Court; in the meantime, Congress in 2004 ordered the Interior Department to convey the land on which the cross sits to the VFW in exchange for five acres of privately owned land within the Preserve. The bill required that the land revert to federal ownership if it was no longer maintained as a war memorial.

As a result of the judge's ruling, the cross was covered by a plywood box. Later, the Ninth Circuit agreed that Buono had an interest sufficient to allow him to sue, and ruled that the display was unconstitutional. Relying on its own precedent invalidating the display of a Christian cross in a public park in Eugene, Ore., it said the Mojave cross was a First Amendment violation. It said it would leave to another day whether Congress's order of transfer to the VFW was constitutionally valid.

The case then returned to the district court, with Buono asking that the transfer to the VFW be ruled invalid under the Establishment Clause. The judge agreed, ruling that the transfer was an attempt by Congress to evade the court ruling against the cross display. This remained a government endorsement of a particular religion, the judge concluded. The transfer was aimed at keeping the cross in place, the judge found, and was thus barred. Again, the Ninth Circuit affirmed, finding that the transfer would not end the endorsement of religion. The government still had control of the property, the court of appeals said. Over five judges' dissent, the Ninth Circuit refused to reconsider the case en banc.

Petition for Certiorari

The Interior Department last October took the case on to the Supreme Court (docket 08-472), raising two questions: a challenge to Buono's "standing" to sue, and a plea to uphold the congressional transfer of the land to private hands as a remedy for any constitutional offense. While fully airing the "standing" issue, contending that Buono's objection is ideological rather than religious and that he has suffered no actual injury from the display so it is "a stretch" to allow him to sue, the petition put a heavy focus on what it deemed the constitutional error of the lower courts, especially the Ninth Circuit.

The decision by Congress to transfer the land where the cross sits "was an eminently sensible and constitutionally permissible way of resolving any Establishment Clause problem," the petition asserted. This also averted any appearance of hostility to religion or to the memory of "fallen service members." And, it added, that part of the Ninth Circuit's ruling conflicts with one by the Seventh Circuit in a 2005 case.

Buono's response urged the Court to deny review, arguing that he clearly has a claim of injury, and that the case did not actually present to the Court an order directing removal of the cross, nor did it present the validity of Congress's transfer of the land to the VFW. It did contend, though, that the transfer did not cure the Establishment Clause problem. There is no actual conflict on the transfer question between the Ninth and Seventh Circuits, the response contended. On the standing issue, it contended that Buono "has had direct and unwelcome contact with the cross in the Preserve and will incur burdens to avoid exposure to it in the future."

Finally, Buono's response argued that the case is not a good one to test any of the issues, because it may well be moot, since the VFW post to which the land transfer was made is now defunct.

The Court granted review of the government petition on Feb. 23, and has set the oral argument for Oct. 7.

Merits Briefs

The Interior Department's merits brief began with the standing issue, seeking directly to contest Buono's claim that his objection is a religious one; he only seeks an open forum, and that is not a religious matter. In essence, the brief argued, he is actually protesting having to observe a war memorial, a use with which he simply disagrees. In addition, it suggested, he can have no religious objection any longer, because Congress's order of a land transfer has cured any Establishment Clause problem, and that, too, undercut his claim of injury.

Defending the cross as a war memorial, the government brief said it serves "important secular purposes" -- that is, preserving a war memorial. That is not "a sham," it insisted. And, it added, if ever there was an Establishment Clause problem, it has been overcome by a legitimate transfer. Moreover, it argued, the government will not retain any controls over the property as a consequence of the transfer. If the site were to revert to the government, it would still be maintained only as a war memorial.

Buono's merits brief, too, began with the standing issue. Since the government did not file an appeal to the Supreme Court on the initial question of his right to sue to challenge the cross, that issue is no longer available for review by the Justices, it argued. It went on to contend that Buono was a proper party to return to court to enforce the judge's initial ruling that the cross is an invalid display. Congress's transfer, he said, caused him a new injury that he has standing to challenge.

Moving on to what merits question may be before the Court, Buono's counsel contended that the judge's initial injunction against the cross is settled law and is no longer open to challenge before the Justices, since the government is not permitted to relitigate it. What is left of the case, it went on, is whether the land transfer remedied the Establishment Clause violation and, if it does not, whether Congress has actually interfered with the achievement of a complete remedy for that violation. On that point, the brief asserted, the transfer does not achieve a complete remedy. The government is continuing to endorse the Christian symbol through Congress's designation of it as a national memorial, the brief said.

There are only 45 other designated national memorials -- including such structures as the Washington Monument and Mount Rushmore. That argument appeared to be intended to show that the small plot of land and the Mojave cross have been given a truly grand stature by Congress. The means chosen by Congress for the transfer continued the favoritism of the Christian symbol, the brief said.

The case, predictably, has drawn wide amici support, on both sides, including an array of veterans' groups arguing opposite views on the impact of the case on war memorials. The government has drawn a number of conservative advocacy groups to its side, and the former park officer has lined up behind him almost as many liberal advocacy groups. In each case, the groups are familiar entrants into debates before the Court on religious symbols.

Analysis

For decades, the Court has looked at religious symbols of varying dimensions and content sited on public property, and has usually analyzed each in a fact-specific way. As a result, on the same day, it has rendered a decision going one way on a Ten Commandments display, and a separate decision going the other way. Thus, if the Buono case follows the familiar pattern, the Court will parse closely all of the facts surrounding the Mojave cross: how it got there, how long it has been there, how the site has been used, what message or messages government has sent while it has stood there, and why its validity is only now being tested. Those are some of the ingredients in examining whether the government has embraced a religious symbol as its own, and, if so, whether it is unconstitutional as a result. The war memorial facet of this particular monument could skew that analysis somewhat; it is not clear, though, that the cause to which a monument is formally dedicated can survive a constitutional challenge when it is so distinctly a symbol of one religious faith.

What makes this case different, if the Court decides that it will rule on the merits, is the novel question of how the government can cure an Establishment Clause violation (provided, of course, the Court first finds that there was such a violation). The Court could well make new law on that remedy issue, if it is reached.

Because so much of the dispute, and the contents of the briefs, are focused on Buono's standing to sue, the Court would seem likely to give that special attention, perhaps even more than focusing on the usual jurisdictional question of finding that standing must exist before a case could proceed to the merits. The case has the potential to re-define what kind of injury an objector must show when confronted with a purely religious symbol on public property. Some of the Justices -- especially Antonin Scalia -- have made it very clear that they want to narrow the concept of standing to sue, and they have recently appeared to be gaining support among their colleagues.

Grant Write-Up

The Supreme Court has given itself two choices to resolve a decade-old controversy over a Christian cross that stands on an isolated acre in the desert, amid the vast 1.6 million acres of the Mojave National Preserve in San Bernardino County in southeastern California. Either one is likely to be of considerable importance, in the ongoing national dispute over placing religious symbols on public property — a dispute that regularly returns to the Court.

The Court can end the controversy by ruling that the only challenger to the cross had no right to file his case. That seems, on the surface, to be a somewhat mundane issue of court procedure. It is, however, a question of deep consequence for those who oppose religious symbols. That’s because the underlying question is: what kind of harm must such an opponent show before being allowed to seek a remedy in court?

Or, the Court can decide whether Congress, stubbornly defending such a religious symbol’s place on public property, can get around the constitutional question by simply transferring the site to a private buyer, thus leaving the symbol intact where it is. That outcome of the case likely will have wide impact on a variety of statutes and other monuments with religious themes that stand on government property, in cemeteries, parks and elsewhere. Many tributes to war veterans, for example, use religious imagery. Several veterans’ groups, in fact, told the Court in this case that “without action by this Court, countless veterans memorials will perish.”

Both of those fundamental questions are at issue in the case of Salazar (Interior Secretary) v. Buono (08-372). The case involves a 74-year-old war memorial in the form of a Christian cross (several times replaced). It is made of white metal pipes, and stands at about five feet on Sunrise Rock, a granite outcropping rising from the desert floor. It is in a remote part of the huge Preserve, but it is clearly visible to those who approach it on a nearby road. There is nothing near it except rock, weeds and some cactus.

The controversy over its presence there has been an active issue since 1999; several times, Congress has stepped in to save the cross.

Ten years ago, a Utah man, a National Park Service retiree, asked permission to put up a Buddhist shrine near the cross. The Park Service said no, and indicated it would take down the cross. The American Civil Liberties Union pressed the Service to do so, but then Congress stepped in amid protests from one of its members and local officials. Ultimately, after several other measures did not succeed, Congress in 2004 ordered a one-acre site including the cross swapped for a five-acre parcel of privately owned land, elsewhere in the Preserve.

That action was taken while the Ninth Circuit Court was considering a case filed by another former Park Service official, Frank Buono, who lives in Oregon but once worked at the Preserve and returns from time to time for visits. He is a Roman Catholic, and does not object to a cross being on public land. But he does say he is offended if a cross is allowed on government property, when the site is not open to other displays, including, perhaps, emblems of other religions.

The Interior Secretary – now Ken Salazar, in the new Obama Cabinet — is pursuing the government appeal, continuing the case originally taken to the Court by his predecessor, Secretary Dirk Kempthorne.

The government petition seeks to have Buono’s challenge dismissed, first on the argument that he had no right to sue (no “standing,” in Article III terms). Bjuono’s claim of injury, it contends, is not a religious problem at all. Rather, it says, it is an “ideological objection that public lands on which crosses are displayed should also be public fora on which other persons may display other symbols.”

Salazar’s lawyers argue that Buono has only a “policy disagreement,” and the Court has never allowed a lawsuit based on the Constitution’s religious clauses for such a complaint. Since Buono has no “spiritual stake” in the placement of the cross on national lands, it asserts, he is suffering no injury the courts can remedy.

Buono’s lawyers contend that the Court’s precedents only require evidence of “direct and unwecome contact with a government-sponsored religious display or practice.” That, they say, is Buono’s objection, and his resulting injury. It is not an “abstract, generalized objection,” the response contends.

If the Court were to accept the government contention that Buono had no injury, and thus no right to sue, that would be the end of the case. But, in reaching that conclusion, the Court presumably will make some new law, clarifying the injury component of “standing” to challenge religion in the public square.

If, however, the Court finds Buono was properly allowed into court, it would then decide whether the tactic chosen by Congress — a giveaway, or trade, of a site containing a religious display — cures any constitutional problem. The Court, in this particular case, however, is not confronted with a simple disposal of the property into private hands. Even while ordering the transfer, Congress officially designated the one acre plot with the cross as “a national memorial commemorating United States participation in World War I and honoring the American veterans of that war.”

This, according to Buono’s lawyers, brings into play a federal law requiring the National Park Service to regulate national parks, monuments, and reservations, whether on federal or private land. That is enough to make the cross a continuing object of the government’s care and concern, making its presence still a constitutional problem, his lawyers assert. “If Congress had wanted to limit the NPS’s jurisdicion to national monuments or memorials on federal lands, it could have done so, as it has done in other stastutes,” they say.

The case will come up for argument some time in the Court’s next Term, starting Oct. 5.

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