September 24, 2009

In Brief: Salazar v. Buono

On Oct. 7, 2009, the U.S. Supreme Court will hear oral arguments in Salazar v. Buono, a case involving a constitutional challenge to the presence of an eight-foot-tall Christian cross in the Mojave National Preserve in San Bernardino County, Calif. The case arose when Frank Buono, a former assistant superintendent of the preserve, filed a lawsuit demanding that the National Park Service, which administers the preserve, remove the cross. Buono argued that because the cross is on government land it amounts to a government endorsement of religion and thus violates the Establishment Clause of the First Amendment to the U.S. Constitution. After eight years of litigation in lower courts, the case is now before the Supreme Court. The high court’s decision has the potential to determine the fate of the cross and similar displays across the country as well as to limit who may bring Establishment Clause lawsuits in federal court.

The Pew Research Center’s Forum on Religion & Public Life provides a brief overview of the case’s long path to the Supreme Court and the arguments that the parties are likely to make when they appear before the justices.


What is the origin of this controversy?

In 1934, the Veterans of Foreign Wars (VFW), a private organization, honored World War I veterans by placing a Christian cross on top of a large outcropping known as Sunrise Rock, on public land in what is now the Mojave National Preserve. Over the years, other private groups and individuals have replaced the cross several times; the current cross was erected in 1998 by Henry Sandoz, a private citizen who lives in the area.

In 1999, a Utah resident asked the National Park Service for permission to erect a stupa, a type of Buddhist memorial, near the cross. The Park Service rejected the request, saying that federal law prohibits private parties from installing memorials and other permanent displays on federal property without authorization. In rejecting the Buddhist memorial, the Park Service also declared that it intended to remove the cross from Sunrise Rock because the bureau had never authorized its installation. In December 2000, in response to this announcement, the U.S. Congress passed a law prohibiting the use of government funds to remove the cross. Following the passage of this law, the Park Service did not remove the cross from Sunrise Rock.

How did the case progress through the federal court system and ultimately to the U.S. Supreme Court?

In March 2001, former Assistant Superintendent Buono filed a lawsuit in the U.S. District Court for the Central District of California claiming that the National Park Service had to remove the cross because its display violated the Establishment Clause. In January 2002, while Buono’s lawsuit was still in the district court, Congress designated the cross as a national memorial, putting it in a select group with just 45 other national memorials, including famous structures such as the Washington Monument and the Jefferson Memorial. In addition, Congress allocated federal funding to the Park Service for the purpose of installing a memorial plaque at the site and obtaining a replica of the original VFW cross. Shortly after, in July 2002, the district court held that the display of the cross on federal property violated the Establishment Clause and ordered the Park Service to remove it. Three months later, to ensure that the district court’s order was not carried out, Congress passed another law that banned the use of federal dollars to remove the cross.

The National Park Service then appealed the district court’s order to the 9th U.S. Circuit Court of Appeals. In September 2003, while this appeal was still in the 9th Circuit, Congress passed yet another law, this time instructing the Secretary of the Interior to transfer ownership of Sunrise Rock and a surrounding acre to the VFW. In exchange, Sandoz, who had erected the current cross, voluntarily gave the federal government approximately five acres of land that he owned near Sunrise Rock. The 2003 law also stated that if the VFW used the property as anything other than a memorial, the federal government would regain ownership of the land.

In June 2004, before the Secretary of the Interior completed the property transfer to the VFW, the 9th Circuit, in a unanimous opinion written by U.S. Circuit Judge Alex Kozinski, affirmed the district court’s ruling that the Park Service had to remove the cross because its display violated the Establishment Clause. The government did not seek the U.S. Supreme Court’s review of this ruling, a fact that would become highly relevant to the argument in Buono’s brief to the Supreme Court.

Despite the 9th Circuit’s ruling that the display violated the Establishment Clause, the National Park Service did not remove the cross but instead took steps toward transferring the property to the VFW, as required by the September 2003 congressional statute. Buono responded by filing a new lawsuit in the district court, this time to enforce the district court’s order to remove the cross as well as to prohibit the Park Service from transferring the land to the VFW.

The district court agreed with Buono and invalidated the property transfer as an illegal attempt to evade the court’s earlier order to remove the cross. The Park Service appealed the new ruling to the 9th Circuit, which in 2007 affirmed the district court’s judgment. The Park Service then appealed to the U.S. Supreme Court, and in February 2009, the high court agreed to hear the case. Because the Park Service is administered by the Department of the Interior and Ken Salazar is currently the Secretary of the Interior, the case now before the Supreme Court is called Salazar v. Buono.

What arguments does Salazar make in the government’s brief to the Supreme Court to explain why the National Park Service is not required to remove the cross?

In his brief to the high court, Salazar makes two principal arguments. First, he claims that the district court and the 9th Circuit did not have jurisdiction over the case because Buono did not have legal standing (the right to sue). To have standing in a federal court, the person bringing the lawsuit must show that he or she was injured in some way by the opposing party.

Salazar contends that the public display of the cross did not injure Buono because Buono is a practicing Catholic, and, moreover, Buono has conceded that he does not find the sight of a Christian cross on public land offensive in and of itself. Rather, Buono objects to the government’s prohibiting people from installing other freestanding, permanent displays – such as the Buddhist memorial – on the preserve. Because Buono does not find the cross itself offensive and because he is not one of the people who has requested to install a display on the preserve, Salazar argues that Buono has not suffered any injury and thus does not have legal standing.

Salazar’s second claim is that even if Buono did have standing to bring the case, the 9th Circuit was wrong in holding that the display of the cross violates the Establishment Clause. Salazar contends that although the Establishment Clause prohibits the government from endorsing religious messages, the display of the cross in this case does not violate the clause because the cross no longer sits on government property and thus, by definition, does not constitute a government-sponsored religious message. According to Salazar, the link between the cross and any government message ended when Congress passed the 2003 law instructing the Secretary of the Interior to transfer Sunrise Rock to the VFW.

Salazar further argues that the 2003 law was valid because its primary purpose was not to endorse a religious message but rather to preserve the memorial. According to Salazar, Congress sought to transfer the property to the VFW instead of putting the property up for a public bid because Congress concluded that the VFW, as the group that originally created the memorial, would give the memorial the best attention and care.

What is Buono’s argument in response?

Buono makes two principal claims in his brief. First, he contends that he had standing to bring an Establishment Clause claim in federal court against the National Park Service because Supreme Court precedents recognize such standing for persons who have had “direct and unwelcome contact with a religious symbol on government land.” Buono argues that his contact with the display was “unwelcome,” even if the cross itself did not offend him, because it represented for him the government’s preference for one faith over others.

Second, Buono argues that the continued display of the cross violates the Establishment Clause. Part of his argument is based on the rules that govern lawsuits in federal court. Buono contends that because the government never appealed the 9th Circuit’s 2004 ruling that the display of the cross violated the Establishment Clause, federal court rules prohibit the Supreme Court from reversing that 9th Circuit decision. In other words, Buono argues that the Supreme Court may not rule any longer on the original question of whether the display violates the Establishment Clause. Instead, Buono asserts, the high court’s Establishment Clause inquiry must now be limited simply to whether the 9th Circuit was correct in its 2007 ruling that the transfer of Sunrise Rock to the VFW did not eliminate the original Establishment Clause problem.

According to Buono, the congressional transfer of the property did not correct the original Establishment Clause violation because in transferring the property Congress did not repeal the law that designated the cross as a national memorial. Buono argues that because one of the most important Establishment Clause principles is that the government may not favor one faith over others, a congressionally designated national memorial is unconstitutional if it includes a cross but not other religious symbols. Because of this designation, Buono concludes that Congress could not remedy the Establishment Clause violation by transferring the property to the VFW and that the only remedy would be to remove the cross itself.

Buono further argues that even if it were possible in the abstract for Congress to correct the original Establishment Clause violation by transferring the cross to a private group, the display in this case would still be unconstitutional because the transfer of property was incomplete. Under the congressional statute that gave the land to the VFW, the federal government would regain the property if the group stopped using it as a memorial. Because the federal government maintains an interest in the property and this interest is tied to the continued display of the memorial, Buono argues that the government has not sufficiently disconnected itself from the religious display.

What might be the significance of Salazar v. Buono?

The significance of the case will come down to which legal avenue the court chooses to resolve the dispute. If the Supreme Court rules in favor of Buono on the Establishment Clause issue, then that ruling could require federal, state and local governments to remove many sectarian religious symbols from memorials across the country. Alternatively, if the high court holds that the display of the cross does not violate the Establishment Clause, then that ruling might allow the government to give one religious group’s symbols special prominence in public parks and buildings.

Moreover, if the court reverses the 9th Circuit’s decision on the ground that Buono did not have standing to bring his Establishment Clause claim, then in the future other citizens across the country might find it more difficult to bring similar lawsuits in federal court. The court could limit such a lack of standing to people who claim to be offended specifically by the government’s preference for some religious displays over others, or the court might go further and rule that people who generally object to public religious displays lack standing.

The case also might provide a significant indication of how the Supreme Court’s newest member, Justice Sonia Sotomayor, views church-state issues. She has replaced Justice David Souter, who was widely considered to be the high court’s most ardent supporter of church-state separation. Sotomayor’s position on this case thus might provide some insight into the direction of church-state law under the newly constituted Supreme Court.

This report was written by Jesse Merriam, Research Associate, Pew Research Center’s Forum on Religion & Public Life.

Photo credit: Las Vegas Review-Journal, 2002