Salazar v. Buono

By:   Scott Grubman

On April 28, 2010, the United States Supreme Court issued its decision in Salazar v. Buono, No. 08-472.  The plaintiff in Salazar, Frank Buono, claimed that the “Mojave Cross,” a Latin cross placed on federal land in the Mojave National Preserve by members of the Veterans of Foreign Wars (VFW) in 1934, violated the First Amendment’s Establishment Clause.  Buono sought an injunction (an injunction is defined by Black’s Law Dictionary as “[a] court order commanding or preventing an action”) requiring the government to remove the cross.  The trial court granted Buono’s request for an injunction, finding that the cross on federal land “conveyed an impression of governmental endorsement of religion,” therefore violating the Establishment Clause, which prohibits such an endorsement.  On appeal, the Ninth circuit Court of Appeals affirmed the trial court.  While the government’s appeal from the trial court’s ruling was pending, however, Congress passed the Department of Defense Appropriations Act, which directed the Secretary of the Interior to transfer the cross and the land on which it stands to the VFW in exchange for privately owned land elsewhere in the Preserve.  According to Buono, this transfer was an invalid attempt to get around the trial court’s ruling that the cross was unconstitutional—because the Establishment Clause only prohibits actions by the government and not private citizens, by transferring the cross to a private organization, the constitutional issue became moot.  The government, on the other hand, argued that transferring the cross to a private organization was a way to comply with the trial court’s injunction by removing the constitutional problem.  Buono went back to the trial court seeking to stop the land transfer authorized by Congress.  Concluding that the transfer was an invalid attempt to keep the cross on display, the trial court granted Buono’s motion and blocked the government from implementing the land-transfer statute.  The Ninth Circuit once again affirmed.

By a margin of 5-4, however, the Supreme Court reversed the granting of the second injunction.   The plurality opinion (a plurality opinion is an opinion lacking enough votes to constitute a majority, but receiving more votes than any other opinion) focused on the context in which the land-transfer statute was enacted and the reasons for its passage.  The Court noted that private citizens placed the cross to commemorate American servicemen who had died in World War I.  It went on to say that “[a]lthough certainly a Christian symbol, the cross was not emplaced . . . to promote a Christian message.”  The plurality noted that the cross had stood in the same location for nearly seven decades before the land-transfer statute was enacted and, by that time, “the cross and the cause it commemorated had become entwined in the public consciousness,” and that Congress had even designated the cross as a national memorial.  The Court discussed the dilemma facing the government after the trial court issued its first injunction—“[i]t could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those the cross was seen as honoring.”  It held that nothing in the trial court’s original injunction prevented the government from enacting the land-transfer statute.  Deferring to Congress’ judgment, the Court discussed “Congress’s prerogative to balance opposing interest and its institutional competence to do so.”  It went on to hold that “the land-transfer statute embodie[d] Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation.” 

At this juncture it is important to note what the Court in Salazar did not do.  The Court did not say that the trial court was powerless to prevent the government from implementing the land-transfer statute.  What the Court did say, however, is that the trial court went about doing so the wrong way—instead of simply granting the injunction because of its suspicion of an illegal governmental purpose, which is what the trial court did, it should have inquired into the effect that knowledge of the land transfer would have on any perceived governmental endorsement of religion.  Further, and of particular importance, the Court in Salazar did not say whether maintenance of the Mojave Cross on federal land was constitutional under the Establishment Clause—that issue was not before the Court.  However, the Court did indicate its possible disagreement with the plaintiff’s position, noting that “[t]he goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm . . . . The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”  This segment of the plurality’s opinion might come into play in a future case where the constitutionality of a religious symbol on federal lands is brought directly into question.  It is important to note, however, that only three Justices—Kennedy, Roberts, and Alito—signed on to this portion of the opinion.  

Mojave Cross (google Images)

Dissenting, Justice Stevens first took issue with the plurality’s suggestion that the Mojave Cross did not have a Christian-specific message, stating that “[a] Latin cross necessarily symbolizes one of the most important tenants upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ.”  As to whether Congress’ land-transfer statute violated the first injunction issued by the trial court requiring the government to remove the cross, Justice Stevens said that it did.  He noted that the initial injunction barred the government from “permitting the display of” the cross and that the land-transfer statute, in direct contradiction of this order, permitted the display of the cross.  Justice Stevens stated that, because the federal government owned the land at issue, the transfer statute would require the government to take an affirmative act designed to keep the cross in place.  He also went on to discuss why, in his opinion, the display of the cross on federal land would violate the Establishment Clause by endorsing a specific religious message.  In a separate dissenting opinion, Justice Breyer held that, assuming that the cross on federal lands violated the Establishment Clause, so did the statute permitting its transfer to a private organization.  

As already mentioned, the Court’s opinion in Salazar was nowhere near as significant or groundbreaking as it might seem at first glance.  In fact, it was entirely procedural, and failed to put forth a substantive ruling on the constitutionality of the cross on federal land.  However, the different opinions in Salazar lend some insight into how the individual Justices would rule should this constitutional question—the legality of a religious symbol on federal land—come directly before the Court in a future case.  For now, the case will go back to the trial court for a more detailed analysis as to whether the land-transfer statute violated the court’s original injunction requiring removal of the cross.  

Liberty Legal Institute “Don’t Tear Me Down” Video

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Further Reading:   

  • L.A. Times article covering Salazar:  http://www.latimes.com/news/nationworld/nation/la-na-court-cross-20100429,0,4660088.story
  • The full text of the Court’s opinion in Salazar can be accessed online at: http://www.scribd.com/doc/30642133/Salazar-v-Buono-No-08-472
  • Full citation:  Salazar v. Buono, No. 08-472, 2010 U.S. LEXIS 3674 (April 28, 2010).

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