Salazar v. Buono (08-472)

Oral argument: Oct. 7, 2009

Appealed from: United States Court of Appeals for the Ninth Circuit (May 14, 2008)

ESTABLISHMENT CLAUSE, WAR MEMORIAL, LATIN CROSS, SUNRISE ROCK

Salazar v. Buono concerns the Establishment Clause and a Latin cross on federal land. In 1934, the Veterans of Foreign Wars (“VFW”) erected a large Latin cross on Sunrise Rock in San Bernardino, California, commemorating veterans of World War I. In 2004, ten years after Sunrise Rock became federal parkland, Frank Buono sued the Secretary of the Interior. Buono argued that the cross’ presence on federal land violated the Establishment Clause. Buono won. While the case was on appeal, Congress attempted to transfer the land to the VFW. After the Court of Appeals affirmed Buono’s victory, Buono moved to enforce the judgment. The District Court then blocked the land transfer and ordered the removal of the cross. The Court of Appeals affirmed that enforcement action. The Supreme Court granted certiorari to resolve whether Buono had standing to challenge the cross’ presence in the first place, and if he did, whether transfer to a private party corrects the Establishment Clause violation. This case may have implications for standing doctrine in religious injury cases. Furthermore, this case may provide guidance on the use of land transfer as a means to resolve Establishment Clause violations.

Questions presented

More than 70 years ago, the Veterans of Foreign Wars (VFW) erected a cross as a memorial to fallen service members in a remote area within what is now a federal preserve. After the district court held that the presence of the cross on federal land violated the Establishment Clause and the court permanently enjoined the government from permitting the display of the cross, Congress enacted legislation directing the Department of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The district court then permanently enjoined the government from implementing that Act of Congress, and the court of appeals affirmed. The questions presented are:

  1. Whether respondent has standing to maintain this action where he has no objection to the public display of a cross, but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols.
  2. Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands.

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Issues

Whether Buono has standing and, if he does, whether the sale of land in question from the Department of the Interior to the Veterans of Foreign Wars overcomes the Establishment Clause violation?

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Facts

The Mojave National Preserve and the Cross

In 1934, the Veterans of Foreign Wars (“VFW”) erected a Latin cross atop Sunrise Rock on the north side of Cima Road in southeastern California. See Buono v. Norton, 212 F.Supp.2d 1202, 1205 (C.D. Cal. 2002). Although the Latin cross is “the preeminent symbol of Christianity” and “not a symbol of any other religion,” signs accompanying the cross informed onlookers that the cross memorialized soldiers who died in World War I. See id. Since its creation, however, the cross underwent four notable changes. First, private parties repeatedly reconstructed the cross. Second, the site now lacks the memorial signage commemorating veterans. See id. Third, in 1994, Congress designated Sunrise Rock a federal preserve. See id. Finally, although National Park Service (“NPS”) continued to allow the display of the cross, it refused to “open[] up the area . . . to individuals to erect other free-standing permanent displays, religious or otherwise.” See id.

Litigation History

In 1999, the NPS denied a third party’s request to build a Buddhist shrine near the cross. See Buono v. Kempthorne, 527 F.3d 758, 769 (9th Cir. 2008). In denying the request, the NPS further stated that they intended to remove the cross. See id. Congress then passed a law prohibiting using federal funds to remove the cross. See id.

In 2001, Frank Buono, a retired NPS employee, sued the NPS, seeking removal of the cross (“Buono I”). See Norton, 212 F.Supp.2d at 1207. While the case was pending, Congress passed a bill designating the cross a national memorial and provided funds for a memorial plaque. See id. Nevertheless, the District Court found that the cross violated the Establishment Clause and granted an injunction. See id. at 1217. The government appealed the injunction in 2003 (“Buono II”). See Kempthorne, 527 F.3d at 771.

While Buono II was pending, Congress transferred the land containing the cross to the VFW, in exchange for a parcel of equal value. See Kempthorne, 527 F.3d at 771. This transfer (contained in a defense appropriations bill) retained the cross' status as a national memorial and provided that the cross would revert back to the government should it no longer be maintained as a war memorial. See id.

The Ninth Circuit affirmed the injunction ruling, finding the cross as an Establishment Clause violation, particularly because “a reasonable observer, even without knowing whether Sunrise Rock is federally owned, would believe — or at least suspect — that the cross rests on public land.” Kempthorne, 527 F.3d at 772 (discussing the rationale behind the Buono II decision). NPS proceeded with the land exchange. See id. at 773.

Arguing that the land transfer itself violated the Establishment Clause, Buono brought suit to enforce the injunction against NPS (“Buono III”). See Kempthorne, 527 F.3d at 773. The District Court sided with Buono, holding that “the transfer of the Preserve land . . . is an attempt by the government to evade the permanent injunction enjoining the display of the Latin Cross atop Sunrise Rock.” Id. (quoting Buono v. Norton, 364 F.Supp.2d 1175, 1182). The Ninth Circuit affirmed. See id. at 783.

The Supreme Court granted certiorari to consider whether Buono has standing to bring the enforcement action and, if he does, whether the land transfer overcomes the Establishment Clause violation. See Questions Presented.

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Discussion

The Establishment Clause prohibits the government from favoring specific religions. See U.S. Const. amend. I. Assuming the Court does not decide the case solely on standing grounds, the Court may provide additional guidance on when religious displays on public land violate the Establishment Clause, as well as by what methods the government may use to cure violations.

Implications from Maintaining or Removing the Cross

Supporting petitioner, Secretary Salazar (“Salazar”), The Foundation for Free Expression fears that a decision to uphold the injunction will forfeit religious neutrality and “display hostility by erasing all references to the nation’s religious heritage.” See Brief of Amicus Curiae Foundation for Free Expression in Support of Petitioner at 1, 23. Writing on behalf of their respective states, many Attorneys General also worry about the impact the decision will have “on the continued viability of monuments that have become fixtures of public venues around the country. A decision against the United States may even put some states and localities in the untenable position of having to destroy substantial longstanding monuments that bear religious symbols.” Brief of Amicus Curiae States of Indiana & Alabama, et. al. in Support of Petitioner at 1–2. Echoing the concerns of the Foundation for Free Expression, “destruction of offending monuments . . . would not only come at great cost to taxpayers, but would also create a culture of governmental hostility to the role of religion in our Nation’s history and in the inspiration of its people.” Id. at 3. Moreover, the American Legion expresses the concern that the “unpredictability of Establishment Clause cases in general makes it impossible for government officials and veterans organizations to know when a particular memorial is unconstitutional.” See Brief of Amicus Curiae The American Legion Department of California in Support of Petitioner at 2.

While not refuting the potential impacts of upholding the injunction, amici supporting Buono express concerns with the alternative outcome. For example, the Center for Inquiry fears that a decision to label the land transfer a constitutional cure would encourage the government to further sponsor religion while creating the mere appearance of Establishment clause compliance. See Brief of Amicus Curiae Center for Inquiry in Support of Respondent at 2. Other amici are similarly concerned with what message such a decision would send to the country; the Muslim Armed Forces and Veteran Affairs Counsel and the Jewish War Veterans of the United States of America opine that “by labeling the cross . . .[a] national memorial to veterans of World War I, Salazar ignores and denigrates the service of our non-Christian veterans of that war.” Brief of Amicus Curiae Jewish War Veterans of the United States of America in Support of Respondent at 4; Brief of Amicus Curiae American Muslim Armed Forces and Veterans Affairs Council, et al. in Support of Respondent at 4. Looking toward the future, several former military officials raise the concern that perceived government endorsement of Christianity will create divisions in a religiously diverse military and hamper efforts to recruit members of other faiths. See Brief of Amicus Curiae Former High-Ranking Military Officials Colonel David Antoon et al. in Support of Respondent at 4–5.

Taking a different tack, the Baptist Joint Committee for Religious Liberty and the Interfaith Alliance express the concern that an attempt to pass the Latin cross off as a non-religious symbol degrades the Latin cross and what it represents to Christians. See Brief of Amicus Curiae Baptist Joint Committee for Religious Liberty and the Interfaith Alliance in Support of Respondent at 25.

Standing Implications

The Center for Inquiry raises the concern that denying standing may create an “improper hierarchy of belief systems, denying access to the courts by those whose views are not based on religious tenets . . . [and enter] the quagmire of deciding what constitutes a religious belief.” Brief of Amicus Curiae Center for Inquiry at 2. On the other hand, the American Center for Law and Justice and fifteen members of Congress express concern that allowing “offended observer standing” would disrupt the separation of the judicial and legislative branches, moving politically accountable government action into the courts. See Brief of Amicus Curiae American Center for Law and Justice and Fifteen Members of Congress in Support of Petitioner at 3.

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Analysis

May a land-transfer to a private party cure an Establishment Clause violation?

The Establishment Clause mandates that “Congress . . . make no law respecting an establishment of religion.” U.S. Const. amend. I. Buono I established that the cross’s placement on federally-owned land violated the Establishment Clause. See Brief for Petitioner, Ken L. Salazar, Secretary of the Interior, et al. at 5–7; Brief for Respondent Frank Buono at 1–2. The parties diverge over whether Congress’s subsequent land transfer to a private organization eliminates the Establishment Clause violation.

Petitioner, Secretary Salazar (“Salazar”), argues that land transfers to private parties may terminate Establishment Clause violations. See Brief for Petitioner at 21. Salazar reasons that, if government ownership creates the perception of endorsement, then “when a private party commissions or finances a memorial, and displays that memorial on its own land, observers will not attribute the display to the government.” Id. at 22. According to Salazar, the transfer is at least “a presumptively permissible way to cure the Establishment Clause violation.” id. at 24. Under this view, courts must ascertain only whether the transfer is genuine (i.e. not a sham). See id. at 24–25.

Respondent, Frank Buono (“Buono”) argues that the transfer does not cure the violation for four independent reasons. See Brief for the Respondent at 9–10. First, designating the cross a national memorial itself constitutes continued endorsement. See id. In Buono's view, such a designation demonstrates government endorsement of the cross’s religious message since national memorial status creates the perception that the Latin cross is a central government symbol. See id. at 38–40. Second, the transfer does not truly end government ownership and oversight as the government retains the right to retake the land if not used as a memorial. See id. at 10. Third, the no-bid transfer demonstrates favoritism towards the cross. See id. Fourth, the government conceded that the purpose of the transfer was to protect the cross. See id. According to Buono, the government’s actions here are akin to “a cross unconstitutionally placed on city hall steps . . . remedied by selling a few of the stairs to private parties.” See id. at 36.

Salazar maintains a secular Congressional purpose: to preserve a memorial for World War I veterans. See Brief for the Petitioner at 32. Responding to Buono's argument, Salazar notes that Congress has recognized a number of memorials on nonfederal land. See Petitioner’s Reply Brief at 16–17. Similarly, Salazar claims that the right to retake the land has the secular purpose of maintaining a war memorial; the VFW, not the government, controls whether or not the cross will remain. See id. at 19–20.

Does Buono have standing to challenge the cross in the first place?

The Supreme Court also granted certiorari on whether Buono had standing to file his challenge to the cross in the first place. See Questions Presented. Salazar argues that Buono suffered no “injury in fact” and thus could not bring the suit. See Brief for the Petitioner at 12. Salazar explains that Buono suffered no personal injury because his complaint was only that other forms of religious speech were being excluded and not that the cross’ presence affected his rights. See id. at 13.

According to Buono, standing was proper in Buono I because “he is directly and personally affected by the religious symbol to which he objects.” Brief for the Respondent at 8–9. That being said, Buono argues that Salazar cannot actually contest standing in Buono I as the government failed to seek certiorari on standing following that decision. See id. Moreover, Buono argues that res judicata bars Salazar from attacking standing for the original action during the subsequent enforcement proceedings. See id. In other words, Buono insists that the final and unappealed judgment rendered by the Ninth Circuit in 2004 forever forecloses the standing issue. In this enforcement action, Buono argues standing rests upon his right to enforce the prior judgment. See id.

In his reply brief, Salazar disputes the apparent division of the case into two civil actions, pointing out that both actions were in the same court under the same docket number, and that congressional actions while the litigation was pending made appeal unnecessary. See Petitioner’s Reply Brief at 2–3. Salazar adds that, even if the cases were treated as two separate actions, the standing issue is still relevant because the case is not really an enforcement proceeding but rather a new case focused on the land transfer. See id. at 4–6. Finally, Salazar maintains that Buono waived the res judicata argument by not invoking it at an earlier stage of the litigation. See id. at 7.

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Conclusion

In this case, the Supreme Court will decide whether the government's transfer of land—on which a religious symbol is located—to a non-governmental organization rectifies the government's Establishment Clause violation. An affirmative decision may preserve religious symbols on government land, while creating a loophole through which the government may selectively support religious displays. Conversely, a negative decision may close any such loophole, while undermining the validity of religious symbols on government land.

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Authors

Prepared by: Will Rosenzweig and Daniel Shatz

Edited by: James McConnell

Additional Sources

·      Annotated U.S. Constitution: First Amendment (Religion and Expression)

·      Wex: Law about First Amendment (Establishment Clause)

·      PrawfsBlawg: Salazar v. Buono (Feb. 24, 2009)

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