Apr 28, 2010

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Instant Analysis of Salazar v. Buono

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The opinion is available here. Justice Kennedy wrote for the plurality. This opinion is extremely fragmented. Here are some of my initial reactions. It will develop as I read further.

SCOTUSBlog reports that there are two dissenting opinions: Justice Stevens files one, joined by Ginsburg and Sotomayor, and Breyer files a dissent for himself alone. SCOTUSBlog also reports that here are multiple concurrences: Chief Justice Roberts’, Justice Alito’s in part and in the judgment, and Justice Scalia’s, joined by Thomas, concurring in the judgment.

Here is a brief summary of the case.

In 1934, private citizens placed a Latin cross on a rock outcropping in a remote section of the Mojave Desert.Their purpose and intent was to honor American soldiers who fell in World War I. The original cross deterioratedover time, but a reconstructed one now stands at the same place. It is on federal land.

The Court is asked to consider a challenge, not to thefirst placement of the cross or its continued presence on federal land, but to a statute that would transfer the cross and the land on which it stands to a private party. De-partment of Defense Appropriations Act, 2004, Pub. L.108–87, §8121(a), 117 Stat. 1100. The District Court permanently enjoined the Government from implementing the statute. The Court of Appeals affirmed. We conclude that its judgment was in error.

JUSTICE KENNEDY, joined in full by THE CHIEF JUSTICE and in part by JUSTICE ALITO, concluded:

Kennedy found that Buono had standing to proceed, and his interests were sufficiently personal and concrete to support his standing.

1. Buono has standing to maintain this action. Buono’s en-titlement to an injunction having been established in Buono I and II, he sought in Buono III to prevent the Government from frustrating or evading that injunction. His interests in doing so were sufficientlypersonal and concrete to support his standing, given the rights he ob-tained under the earlier decree against the same party as to the samecross and the same land. The Government’s contention that Buono sought to extend, rather than to enforce, the 2002 injunction is not an argument about standing, but about the merits of the District Court’sorder.
With respect to the land transfer statute, the Pluarilty found that the intent of the cross was to honor fallen soldiers, and not to endorse any particular creed.
2. The District Court erred in enjoining the Government from im-plementing the land-transfer statute on the premise that the reliefwas necessary to protect Buono’s rights under the 2002 injunction. Placement of the cross on federal land by pri-vate persons was not an attempt to set the state’s imprimatur on a particular creed. Rather, the intent was simply to honor fallen sol-diers. Moreover, the cross stood for nearly seven decades before thestatute was enacted, by which time the cross and the cause it com-memorated had become entwined in the public consciousness. The 2002 injunction thus presented the Government with a dilemma. It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those thecross was seen as honoring. Deeming neither alternative satisfac-tory, Congress enacted the land-transfer statute. The statute embod-ied a legislative judgment that this dispute is best resolved through aframework and policy of accommodation. The statute should not have been dismissed as an evasion, for it brought about a change of law and a congressional statement of policy applicable to the case.Pp. 9–13.
Kennedy also noted that the Cross was not placed to promote a Christian message:
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 com-memorate 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.
But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whoseheroic acts, noble contributions, and patient striving helpsecure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.
Kennedy remarked that avoiding governmental endorsement does not require eradication of all religious symbols.
The goal of avoiding governmental endorsementdoes not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmen-tal support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledg-ment of religion’s role in society.
Kennedy also expressed deference to the government’s choice of relief.
“Even if, contrary to the congres-sional judgment, the land transfer were thought an insufficient ac-commodation in light of the earlier endorsement finding, it was in-cumbent upon the District Court to consider less drastic relief than complete invalidation of the statute.”

Justice Scalia, joined by Justice Thomas, found that Buono does not have Article III standing to pursue the relief he seeks.

Becuase Buono seeks new relief, he must show that he has standing to pursue that relief by demonstrating that blocking the land transfer will “re-dress or prevent an actual or imminently threatened injury to [him]caused by private or official violation of law.” Summers v. Earth Is-land Institute, 555 U. S. ___, ___. He has failed, however, to allege any such injury. Even assuming that being offended by a religious display constitutes a cognizable injury, it is merely speculativewhether the cross will remain in place, and in any event Buono has made clear, by admitting he has no objection to Christian symbols onprivate property, that he will not be offended.

More analysis after the jump.

Kennedy also remarked on the “reasonable observer” standard in the context of private land.

The District Court failed to consider whether, in light of the change in law and circumstances effected by the land-transfer statute, the “reasonable observer” standard con-tinued to be the appropriate framework through which toconsider the Establishment Clause concerns invoked to justify the requested relief. As a general matter, courtsconsidering Establishment Clause challenges do not in-quire into “reasonable observer” perceptions with respect to objects on private land. Even if, however, this standard were the appropriate one . . . Ap-plying this test here, the message conveyed by the crosswould be assessed in the context of all relevant factors.

Chief Justice Robert’s brief one paragraph concurring opinion makes clear that Congress could take down the cross, sell the land to the VFW, and the VFW could erect the cross again. Why skip the middle man?

At oral argument, respondent’s counsel stated that it“likely would be consistent with the injunction” for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them,with the VFW immediately raising the cross again. Tr. of Oral Arg. 44. I do not see how it can make a difference for the Government to skip that empty ritual and do what Congress told it to do—sell the land with the cross on it. “The Constitution deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).

Justice Stevens in dissent disagrees with the Chief’s concurrence:

Even under THE CHIEF JUSTICE’s revised version of the hypothetical, I would not so quickly decide that taking down the cross makes no material difference. And counsel’s statement takes no position as to whether the hypothetical poses any constitutional problem independent of the injunction. Regardless, we must deal with the substance of the case before us,which involves much more than Congress directing the Government toexecute a simple land transfer.

A great moneyquote from Justice Alito:

As a result, at least until this litigation, it is likely that the cross was seen by morerattlesnakes than humans.

In a bizarre twist, Alito cites Stevens’s Citizens United dissent–an opinion he did not join–and argues the Court should be more deferential to Congress’s decisions.

Finally, I reject JUSTICE STEVENS’ suggestion that theenactment of the land-transfer law was motivated by anillicit purpose. Id. at 24. I would not be “so dismissive of Congress.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 70) (STEVENS, J., concurring in part and dissenting in part). Congress hasshown notable solicitude for the rights of religious minori-ties. See, e.g., Religious Freedom Restoration Act of 1993, 42 U. S. C. §2000bb et seq.; Religious Land Use and Insti-tutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq. I would not jump to the conclusion that Congress’ aimin enacting the land-transfer law was to embrace the religious message of the cross; rather, I see no reason to doubt that Congress’ consistent goal, in legislating with regard to the Sunrise Rock monument, has been to com-memorate our Nation’s war dead and to avoid the disturb-ing symbolism that would have been created by the de-struction of the monument.

Scalia’s concurring opinion notes that Buono has not alleged any actual or imminent injury.

He has failed, however, to allege any actual or imminent injury. To begin with, the predicate for any injury he might assert—that the VFW, after taking pos-session of the land, will continue to display the cross—is at this stage merely speculative.3 Nothing in the statutescompels the VFW (or any future proprietor) to keep it up. The land reverts back to the Government only if “theconveyed property is no longer being maintained as a war memorial,” Pub. L. 108–87, §8121(e), 117 Stat. 1100, which does not depend on whether the cross remains.4

Justice Stevens in dissent disagrees over the nature of the cross, and finds it to be a “starkly sectarian message”:

A Latin cross necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ. In my view, the District Court was right to enforce its prior judgment by enjoining Congress’ proposed remedy—a remedy that was engineered to leave the cross intact and that did not alter its basic meaning. I certainly agree that the Nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message.

Even though Congress recognized this cross for its military associations, the solitary cross conveys an inescapably sectarian message. See Separation of Church and State Comm. v. Eugene, 93 F. 3d 617, 626 (CA9 1996) (O’Scannlain, J., concurring in result) (“[T]he City’s use of a cross to memorialize the war dead may lead observers to believe that the City has chosen to honor only Christianveterans”). As the District Court observed, it is undisputed that the “[L]atin cross is the preeminent symbol ofChristianity. It is exclusively a Christian symbol, and not a symbol of any other religion.” Buono I, 212 F. Supp. 2d, at 1205. We have recognized the significance of the Latincross as a sectarian symbol,6 and no participant in this litigation denies that the cross bears that social meaning. Making a plain, unadorned Latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian.7

Stevens notes that even though the land was transferred, the Government is still performing an “Affirmative” act to make sure the cross is kept in place. Thus the transfer violated the 2002 injunction.

If the land were already privately owned, JUSTICE SCALIA may be correct that the cross’ display on Sunrise Rock would not violate the injunction because the Government would not have to doanything to allow the cross to stand, and the Government could try to prevent its display only by making such a display illegal. But the Government does own this land, and the transfer statute requires the Executive Branch totake an affirmative act (transfer to private ownership) designed to keep the cross in place. In evaluating a claimthat the Government would impermissibly “permit” the cross’ display by effecting a transfer, a court cannot start from a baseline in which the cross has already been transferred.

Moreover, §8121 was designed specifically to foster thedisplay of the cross. Regardless of why the Governmentwanted to “accommodat[e]” the interests associated withits display, ante, at 13 (plurality opinion), it was not onlyforeseeable but also intended that the cross would remain standing. Indeed, so far as the record indicates, the Government had no other purpose for turning over this land to private hands. It was therefore proper for the District Court to find that the transfer would violate its 2002 injunction and to enforce that injunction against the transfer.

Stevens also gives provides some explanation on how to violate the establishment clause.

A government practice violates the Establishment Clause if it “either has the purpose or effect of ‘endorsing’ religion.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592 (1989). “Whether the key word is ‘endorsement,’ ‘favoritism,’ or ‘promotion,’ the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person’s standing in the political community.’” Id., at 593–594 (quoting Lynch v. Donnelly, 465 U. S. 668, 687 (1984) (O’Connor, J., concurring)).

Stevens, relying on the reasonable observer test, remarks that transferring the Cross would not end government endorsement problems.

In my view, the transfer ordered by §8121 would not endgovernment endorsement of the cross for two independently sufficient reasons. First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding thatthe name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display. Congress’ intent to preserve thedisplay of the cross maintains the Government’s endorsement of the cross.

After the transfer, a well-informed observer would know that the cross was no longer on public land, but would additionally be aware of the following facts: The cross was once on public land, the Government was enjoined from permitting its display, Congresstransferred it to a specific purchaser in order to preserveits display in the same location, and the Governmentmaintained a reversionary interest in the land. From this chain of events, in addition to the factors that remain the same after the transfer, he would perceive governmentendorsement of the cross

Stevens repeated over and over again that the only question posed to the Court is whether the government has done enough to distance itself from the cross. Because it failed this goal, the district court should be affirmed.

A reasonable observer, considering the nature of thissymbol, the timing and the substance of Congress’ efforts,and the history of the Sunrise Rock site, could conclude that Congress chose to preserve the cross primarily because of its salience as a cross. Cf. McCreary County, 545

U. S., at 873 (“If the observer had not thrown up his hands, he would probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls . . .”). But no such conclusion is necessary to find for respondent.12 The religious meaning of the crosswas settled by the 2002 judgment; the only question beforeus is whether the Government has sufficiently distanceditself from the cross to end government endorsement of it. At the least, I stress again, a reasonable observer would conclude that the Government’s purpose in transferring the underlying land did not sufficiently distance the Government from the cross. Indeed, §8121 evidenced concernfor whether the cross would be displayed. The District Court was therefore correct to find that the transfer would not end government endorsement of religion.

Stevens closes:

The Mojave Desert is a remote location, far from theseat of our Government. But the Government’s interest in honoring all those who have rendered heroic public service regardless of creed, as well as its constitutional responsibility to avoid endorsement of a particular religious view, should control wherever national memorials speak on behalf of our entire country.

Breyer, writing for himself, isolates the only issue at play:

Thus, as I said at the outset, the only question before us is whether the law permits the District Court to hold thatthe land transfer (presumably along with the subsequent public display of the cross) falls within the scope of itsoriginal injunctive order, an order that says the Govern-ment must not “permi[t] the display of the Latin cross in the area of Sunrise Rock in the Mojave National Pre-serve.” App. 39. In my view the law authorizes the Dis-trict Court to do so.

Breyer sees no need to evaluate any of the substantive First Amendment issues, as this case is clearly resolved on the law of injunctions. Because that matter is straightforward, he would have dismissed the writ as improvidently granted (DIG’d it in the parlance).

Because my conclusion rests primarily upon the law ofinjunctions, because that law is fairly clear, and becausewe cannot properly reach beyond that law to consider the underlying Establishment Clause and standing questions, I can find no federal question of general significance inthis case. I believe we should not have granted the peti-tion for certiorari. Having granted it, the Court should now dismiss the writ as improvidently granted. Since the Court has not done so, however, I believe that we should simply affirm the Ninth Circuit’s judgment.

For my thoughts, and criticisms,  on the reasonable observer test, see this article I published in the George Mason Civil Rights Law Journal on the Lemon test.

I fail to see how the “objective observer” test from McCreary comports with the first

prong of the Lemon test. The Lemon test asks for the purpose of the statute, not what someone

else would think of the effects of the government action. This standard has no bearing on the first

prong of Lemon, and blurs into the second prong of Lemon, the effects prong. To exacerbate this

pseudo-standard, Justice Souter writes that this objective observer “takes account of the

traditional external signs that show up in the ‘text, legislative history, and implementation of the

statute.’”282 As discussed,283 understanding the legislative history and implementation of a statute

is a subjective, imprecise, and even unknowable process. To add an unnecessary layer to an

already complicated Lemon test, and for that layer to search for the unknowable, is a ruse.

Justice Scalia notes that McCreary modifies the purpose prong, and justifies searching for

the purpose of a statute “not as an end itself, but as a means to ascertain the appearance of the

government action to an “‘objective observer.’”284 “Under this approach, even if a government

could show that its actual purpose was not to advance religion, it would presumably violate the

Constitution as long as the Court’s objective observer would think otherwise.”285

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