Bench Memos

Re: Salazar v. Buono

Here’s a fuller account of the opinions by the justices in the majority in Salazar v. Buono:

A.  Justice Kennedy’s plurality opinion (joined in full by the Chief Justice and in large part by Justice Alito):

1.  Frank Buono, the retired Park Service employee who claims to be offended by the presence of a religious symbol on federal land, has standing to seek enforcement of the 2002 injunction that he obtained in Buono I because (a) Buono I proceeded to final judgment and the government cannot now contest Buono’s standing to have obtained that final judgment, and (b) a party that obtains a judgment in its favor has a judicially cognizable interest in ensuring compliance with that judgment.  The government’s argument that Buono was seeking to extend, rather than vindicate, the 2002 injunction goes to the merits of the relief below, not to Buono’s standing.  (Slip op. at 7-8.)  (Note that it’s this last point that Justice Scalia disputes.) 

2.  The district court did not engage in the appropriate inquiry in enjoining the government from implementing the 2004 land-transfer statute.  It enjoined compliance with the statute on the premise that the relief was necessary to protect the rights Buono had secured through the 2002 injunction.  But the land-transfer statute was a substantial change in circumstances.  (See generally slip op. at 9-18.)

“By dismissing Congress’s motives as illicit, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage. Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World War I. Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message. Placement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.

“Time also has played its role. The cross had stood on Sunrise Rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness. Members of the public gathered regularly at Sunrise Rock to pay their respects. Rather than let the cross deteriorate, community members repeatedly took it upon themselves to replace it. Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage.… It is reasonable to interpret the congressional designation as giving recognition to the historical meaning that the cross had attained…. 

“The land-transfer statute embodies Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views. That judgment should not have been dismissed as an evasion, for the statute brought about a change of law and a congressional statement of policy applicable to the case.” (Slip op. at 11-13 (citations omitted).)

3.  Less drastic relief than complete invalidation of the land-transfer statute—e.g., signage indicating VFW’s ownership of the land—may be appropriate.  It’s best to leave this analysis to the district court on remand.  (Slip op. at 18.)  (Justice Alito doesn’t join this part.)

B.  Justice Alito’s opinion concurring in (large) part and concurring in the judgment:

“I would … hold that the statute may be implemented.

“[T]he solution that Congress devised is true to the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.…

“If Congress had done nothing, the Government would have been required to take down the cross, which had stood on Sunrise Rock for nearly 70 years, and this removal would have been viewed by many as a sign of disrespect for the brave soldiers whom the cross was meant to honor. The demolition of this venerable if unsophisticated, monument would also have been interpreted by some as an arresting symbol of a Government that is not neutral but hostile on matters of religion and is bent on eliminating from all public places and symbols any trace of our country’s religious heritage.”

C.  Justice Scalia, joined by Justice Thomas, concurring in the judgment:

The relief Buono requests is not enforcement of the original injunction but expansion of it.  Buono has not alleged that he will be harmed if the VFW decides to keep the cross any actual or imminent injury, and he therefore lacks Article III standing.

I hope to find time to summarize the dissents later today.