April 28, 2010

Supreme Court Decides Salazar v. Buono

On April 28, the Supreme Court decided Salazar v. Buono, No. 08-472, holding that federal courts in California erred in enjoining the Department of the Interior's implementation of a statute that directed the transfer to private hands of federal land on which a cross had been erected in 1934 as a World War I memorial. The transfer had been ordered in response to an earlier injunction, which had not been appealed, directing that the cross be removed on grounds that its presence on public land violated the establishment clause of the First Amendment.

In 1934, private citizens erected a white Latin cross on Sunrise Rock in the Mojave National Preserve in California as a memorial to American soldiers who died in World War I. About 70 years later, Frank Buono, a retired Park Service employee who regularly visited the area, sued to require the cross's removal, arguing that its presence on public land violated the First Amendment's prohibition against establishment of religion. The district court agreed with Buono and issued an injunction ordering the government to remove the cross. While the appeal from this order was pending, Congress enacted a statute directing the Secretary of the Interior to transfer the land on which the cross stood to private owners in exchange for nearby private property. The Ninth Circuit declined to consider the effect of this statute on the case and affirmed the district court order. The government did not seek Supreme Court review of this judgment, which therefore became final.

Buono then asked the district court to enjoin enforcement of the statute requiring the land transfer. The district court held that the statute was an improper attempt to evade its original injunction. It enjoined the government from implementing the land transfer and ordered it to comply with the earlier injunction requiring the cross's removal. The Ninth Circuit affirmed.

The Supreme Court reversed, holding that the lower courts had erred in enjoining enforcement of the land-transfer statute. But no opinion commanded a majority of the Court.

Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, held that Buono had standing to seek to enjoin the land-transfer statute because he had a "judicially cognizable interest" in preventing alleged frustration or evasion of the earlier injunction. The government argued the Buono was seeking to expand the original injunction, not enforce it. But Justice Kennedy rejected that argument as one going to the merits, not to standing.

These three justices also agreed that the district court had erred in enjoining the land-transfer statute. The statute was a substantial change in circumstances bearing on the continued propriety of the relief ordered in 2002. The district court should not have simply dismissed, as an evasion of the 2002 injunction, Congress's attempt to resolve the dilemma the injunction created: It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for the soldiers the cross was seen as honoring. In belittling the Government's efforts as an attempt to "evade" the injunction, the district court had things backwards. Congress's prerogative to balance opposing interests and its institutional competence to do so provide one of the principal reasons for deference to its policy determinations. In addition, the goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. The district court should have reevaluated whether the injunction was necessary, given the changed circumstances created by Congress's passage of the land-transfer statute. A congressional enactment should not be struck down unless no legal alternative exists.

Justice Kennedy, joined by Chief Justice Roberts, announced the judgment of remanding the case to the district court to consider whether the original injunction is still necessary in light of the changes effected by the land-transfer statute. Justice Alito disagreed on this point, concluding that the Court should hold itself that the statute eliminated any reasonable basis for a perception that the government was endorsing religion, while avoiding any perception of disrespect to the war dead who were memorialized by the cross if it were destroyed.

Justice Scalia, joined by Justice Thomas, created a majority for the judgment vacating the lower courts' orders, but only on the ground that Buono lacked Article III standing to sue. Even if Buono's claimed personal offense at the presence of the cross on public land gave him standing to seek and obtain the 2002 injunction, he had made it clear that he did not object to displaying a cross on private property, so he would not be injured by implementation of the statute transferring the land to a private owner. In addition, Justice Scalia found it speculative whether the cross would remain on the land after the transfer.

Justice Kennedy announced the judgment of the Court and filed an opinion in which Chief Justice Roberts joined and Justice Alito joined in part. Chief Justice Roberts filed a concurring opinion. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Scalia filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Stevens filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. Justice Breyer filed a dissenting opinion.

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