Salazar v. Buono

The Supreme Court has agreed to decide whether an 8-foot cross in the Mojave National Preserve is an unconstitutional governmental endorsement of religion.

The cross was first erected by the Veterans of Foreign Wars in 1934 and has been maintained as a war memorial by the National Park Service.

The American Civil Liberties Union filed suit in 2001 on behalf of former park service Frank Buono, a Roman Catholic who alleged that the cross violated the Establishment Clause of the First Amendment. The suit also noted that the park service had denied a request to have a Buddhist shrine erected near the cross.

U.S District Court Judge Robert J. Timlin of the Central District of California agreed with Buono, and ruled in 2002 that the “primary effect of the presence of the cross” was to “advance religion.”

Congress responded in 2004 by passing legislation directing the Department of the Interior to transfer about an acre of land to the Veterans of Foreign Wars in exchange for a privately owned plot nearby.

On Sept. 6, 2007, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit upheld the lower court ruling and invalidated the land transfer, noting that “carving out a tiny parcel of property in the midst of this vast preserve — like a donut hole with the cross atop it — will do nothing to minimize the impermissible governmental endorsement” of the religious symbol.

Last fall, the Bush administration appealed the ruling to the U.S. Supreme Court, arguing that the “seriously misguided decision” will require the government “to tear down a cross that has stood without incident for 70 years as a memorial to fallen service members.” The government also questioned whether Bruno had standing to challenge the cross, since he lives in Oregon and suffers no specific harm because of the cross.

In a friend-of-the-court brief, the VFW, the American Legion and other veterans said the appeals court ruling could trigger legal challenges to the display of crosses at Arlington National Cemetery and elsewhere.

"It is disheartening and distressing to think that Arlington Cemetery must be gutted because there are those who are offended by the religious imagery," the groups wrote. "And under the Ninth Circuit’s approach, no memorial may be preserved by conveying it to a veterans organization, probably the very organization that paid for the memorial in the first place."

On Feb. 23, the Supreme Court accepted the case for review. The court will hear oral arguments in the fall.

Question presented: Whether an individual has Article III standing to bring an Establishment Clause suit challenging the display of a religious symbol on government land and if an Act of Congress directing the land be transferred to a private entity is a permissible accommodation.

A fractured Supreme Court held today that an 8-foot cross in the Mojave National Preserve does not constitute an unconstitutional governmental endorsement of religion.

The cross was first erected by the Veterans of Foreign Wars in 1934 and has been maintained as a war memorial by the National Park Service.

The American Civil Liberties Union filed suit in 2001 on behalf of former park service Frank Buono, a Roman Catholic who alleged that the cross violated the Establishment Clause of the First Amendment. The suit also noted that the park service had denied a request to have a Buddhist shrine erected near the cross.

U.S District Court Judge Robert J. Timlin of the Central District of California agreed with Buono, and ruled in 2002 that the “primary effect of the presence of the cross” was to “advance religion.”

Congress responded in 2004 by passing legislation directing the Department of the Interior to transfer about an acre of land to the Veterans of Foreign Wars in exchange for a privately owned plot nearby.

On Sept. 6, 2007, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit upheld the lower court ruling and invalidated the land transfer, noting that “carving out a tiny parcel of property in the midst of this vast preserve — like a donut hole with the cross atop it — will do nothing to minimize the impermissible governmental endorsement” of the religious symbol.

Last fall, the Bush administration appealed the ruling to the U.S. Supreme Court, arguing that the “seriously misguided decision” will require the government “to tear down a cross that has stood without incident for 70 years as a memorial to fallen service members.” The government also questioned whether Bruno had standing to challenge the cross, since he lives in Oregon and suffers no specific harm because of the cross.

In a friend-of-the-court brief, the VFW, the American Legion and other veterans said the appeals court ruling could trigger legal challenges to the display of crosses at Arlington National Cemetery and elsewhere.

"It is disheartening and distressing to think that Arlington Cemetery must be gutted because there are those who are offended by the religious imagery," the groups wrote. "And under the Ninth Circuit’s approach, no memorial may be preserved by conveying it to a veterans organization, probably the very organization that paid for the memorial in the first place."

On April 28, a divided court reversed and remanded the lower court order in a plurality opinion by Justice Anthony Kennedy.

"Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message," Kennedy wrote in the lead opinion. "Rather, those who erected the cross intended simply to honor our nation's fallen soldiers."

Six justices wrote separate opinions and none spoke for a majority of the court.

Retiring Justice John Paul Stevens authored one of two dissenting opinions.

"Making a plain, unadorned Latin cross a war memorial does not make the cross secular," Stevens wrote. "It makes the war memorial sectarian."

Justices Ruth Bader Ginsburg and Sonia Sotomayor joined in Stevens' dissent. Justice Stephen Breyer wrote a separate dissenting opinion.

Question presented: Whether an individual has Article III standing to bring an Establishment Clause suit challenging the display of a religious symbol on government land and if an Act of Congress directing the land be transferred to a private entity is a permissible accommodation.