Salazar v. Buono (08-472)

April 30, 2010 Supreme Court Update

Greetings, Court fans!

The Court released a major First Amendment decision on Wednesday in Salazar v. Buono (08-472). One Latin cross, approximately eight feet tall, on a rock in the middle of the Mojave Desert generated eight years of litigation, four congressional actions, and now, six opinions from the Court. In Salazar, the Court was asked to determine the fate of a cross initially erected in 1934 by members of the Veterans of Foreign Wars ("VFW") to commemorate soldiers who died in World War I. The location the veterans chose happened to be on federal land, on a rock outcropping known as Sunrise Rock in the Mojave National Preserve, but the veterans did not seek or obtain Government approval to erect the cross. Decades later, Buono, a retired Park Service employee (who happened to be a Christian), filed suit, alleging that the existence of the cross on federal land violated the Establishment Clause. While the case was pending, Congress designated the cross and its adjoining land as a national WWI memorial. In 2002, the district court entered an injunction prohibiting the Government from "permitting the display of the Latin cross in the area of Sunrise Rock." The district court based its decision on a finding that the "primary effect" on a "reasonable observer" of the cross on federal land would be to "convey[] an impression of Governmental endorsement of religion." ("Buono I"). Shortly after the injunction was entered, Congress passed the second of two bills that prohibited the use of federal funds to remove the cross. While an appeal was pending, Congress passed a statute (the "land-transfer statute") directing the Secretary of the Interior to transfer the 1-acre parcel of land containing the cross to the VFW, in exchange for adjoining private land. The land-transfer statute specified that the property would revert to the Government if not maintained as a WWI memorial. The Ninth Circuit affirmed without addressing the potential impact of the land-transfer statute on the case. ("Buono II"). Buono then went back to the district court, to ask that the court enforce its 2002 injunction by enjoining the land transfer. The district court did so ("Buono III"), and the Ninth Circuit again affirmed ("Buono IV").

The primary questions before the Court were: Did Buono have standing? Did the district court properly enjoin the Government from implementing the land transfer statute? And if not, should the case be remanded to the district court for further proceedings? These questions produced a plurality opinion, three concurring opinions, and two dissents. Justice Kennedy announced the judgment of the Court -- to reverse the Ninth Circuit -- and delivered an opinion joined by the Chief and joined in part by Justice Alito. The three-member plurality found that, as the party who had obtained a final judgment granting relief on his claims in Buono I, Buono had standing to seek application of the injunction against the land-transfer statute in Buono III. The plurality further held that the district court erred in Buono III by failing to acknowledge the significance of the land-transfer statute as a change in circumstances. The plurality faulted the district court for belittling the land-transfer statute as an illicit attempt to evade the court's earlier injunction. Rather, the statute was a reasonable congressional solution to a dilemma in which the Government "could not maintain the cross without violating the injunction, but . . . could not remove the cross without conveying disrespect for those the cross was seen as honoring." Justice Kennedy and the Chief believed that the case should be remanded to the District Court to reconsider the continued necessity for injunctive relief in light of the land-transfer statute, and "to consider less drastic relief" than complete invalidation of the land-transfer statute; for example, requiring additional signage to indicate the VFW's ownership of the land.

The Chief wrote a brief concurrence, arguing that in light of Buono's counsel's statement at oral argument that it likely would be consistent with the injunction for the Government to tear down the cross, sell the land to the VFW, and give the cross back to the VFW so that they could immediately raise it again, the Government should be permitted to "skip that empty ritual" and just sell the land with the cross on it. (Beware of Justices leading you down a rabbit trail hypothetical at oral argument!) Justice Alito wrote a separate opinion concurring in the judgment, and concurring with all parts of the plurality opinion except with regard to remand. In his view, remand to the district court was unnecessary because there was a sufficient factual record before the Court for the Court to sustain the validity of the land-transfer statute as a measure to "commemorate our Nation's war dead and to avoid the disturbing symbolism that would have been created by the destruction of the monument." Justice Scalia, joined by Justice Thomas, concurred in the judgment only. They would not have considered the case at all, on the ground that Buono lacked Article III standing to pursue the relief requested, which was not merely enforcement of the original injunction, but an expansion of it. To them, Buono had failed to show that the VFW would continue to display the cross after taking possession of the land, or that he would be harmed thereby, given his prior statements that he had no objection to Christian symbols on private property.

Justice Stevens, joined by Justices Ginsburg and Sotomayor, dissented. In their view, the district court properly recognized that the land-transfer statute was a "means of 'permitting'--indeed encouraging--the display of the cross," in violation of the court's original injunction. The district court then properly found that enjoining the transfer was necessary to achieve the objective of that injunction, which was to avoid the perception of governmental endorsement of religion. The land-transfer statute would not avoid the perception of governmental endorsement because a well-informed observer would be aware of Congress' repeated and "'herculean efforts to preserve the Latin cross,'" because the very purpose of the transfer was to preserve the display of the cross. Justice Stevens questioned the assertion that Congress' efforts here were motivated primarily by a desire to honor WWI veterans. Comparing the cross with the impressive and nonsectarian memorials to the Korean War, Vietnam War, and World War II, Justice Stevens observed: "The sequence of legislative decisions made to designate and preserve a solitary Latin cross at an isolated location in the desert as a memorial for those who fought and died in World War I not only failed to cure the Establishment Clause violation but also in my view, resulted in a dramatically inadequate and inappropriate tribute." Justice Breyer wrote a separate dissenting opinion to express his view that since the case could have been decided based on the law of injunctions, without reference to significant federal questions, the Court should dismiss the writ of certiorari as improvidently granted. If the Court were to reach the merits, Breyer believed the judgment should be affirmed under two main principles of the law of injunctions: (1) district courts should have considerable leeway in interpreting the meaning and application of their own injunctive orders, and (2) courts should not permit defendants to evade injunctions by achieving the same effect through alternative routes.

That's it for this week. Enjoy the weekend.


From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400