Salazar v. Buono

Decision Date28 April 2010
Docket NumberNo. 08–472,08–472
PartiesKen L. SALAZAR, Secretary of the Interior, et al., Petitioners, v. Frank BUONO.
CourtU.S. Supreme Court

559 U.S. 700
130 S.Ct. 1803
176 L.Ed.2d 634

Ken L. SALAZAR, Secretary of the Interior, et al., Petitioners,
Frank BUONO.

No. 08–472

Supreme Court of the United States

Argued Oct. 7, 2009.
Decided April 28, 2010.

Elena Kagan, Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for petitioners.

Michael C. Small, Los Angeles, California, Daniel Mach, American Civil Liberties Union Foundation, Washington, DC, William B. Rubenstein, Cambridge, Massachusetts, Peter J. Eliasberg, Counsel of Record, ACLU Foundation of Southern California, Los Angeles, California, Los

130 S.Ct. 1811

Angeles, CA, Steven R. Shapiro, American Civil Liberties Union Foundation, New York, New York, for respondent.

R. Ted Cruz, Allyson N. Ho, Morgan, Lewis & Bockius LLP, Houston, TX, Aaron Streett, Samuel Burk, Baker Botts LLP, Houston, TX, Kelly J. Shackelford, Counsel of Record, Hiram S. Sasser, III, Roger L. Byron, Liberty Legal Institute, Plano, TX, Chad M. Pinson, Ryan L. Bangert, Elizabeth Hildenbrand Wirmani, Tyler M. Simpson, Baker Botts LLP, Dallas, TX, Reply in Support of Motion to Intervene of Veterans of Foreign Wars of the United States Post 385 and Veterans Of Foreign Wars of the United States Department of California.

Arthur E. Gary, Acting Solicitor, Department of the Interior Washington, DC, Elena Kagan, Solicitor General Counsel of Record, John C. Cruden, Acting Assistant Attorney General, Neal Kumar Katyal, Deputy Solicitor General, Jeffrey B. Wall, Assistant to the Solicitor General, Andrew C. Mergen, Charles R. Shockey, Kathryn E. Kovacs, Attorneys, Department of Justice, Washington, DC, for petitioners.


Justice KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE joins and Justice ALITO joins in part.

559 U.S. 705

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

559 U.S. 706

who fell in World War I. The original cross deteriorated over 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 the first 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. Department 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.



The Mojave National Preserve (Preserve) spans approximately 1.6 million acres in southeastern California. The Preserve is nestled within the Mojave Desert, whose picturesque but rugged territory comprises 25,000 square miles, exceeding in size the combined area of the Nation's five smallest States. See Merriam–Webster's Geographical Dictionary 755, 1228–1230 (3d ed.1997). Just over 90 percent of the land in the Preserve is federally owned, with the rest owned either by the State of California or by private parties. The National Park Service, a division of the Department of the Interior, administers the Preserve as part of the National Park System. 16 U.S.C. §§ 410aaa–41 and 410aaa–46.

Sunrise Rock is a granite outcropping located within the Preserve. Sunrise Rock and the area in its immediate vicinity are federal land, but two private ranches are located less than two miles away. The record does not indicate whether fencing is used to mark the boundary of these ranches. In 1934, members of the Veterans of Foreign Wars (VFW) mounted a Latin cross on the rock as a memorial to soldiers who died in World War I. A Latin cross consists of two

559 U.S. 707

bars—a vertical one

130 S.Ct. 1812

and a shorter, horizontal one. The cross has been replaced or repaired at various times over the years, most recently in 1998 by Henry Sandoz. Sandoz is a private citizen who owns land elsewhere in the Preserve, a portion of which he is prepared to transfer to the Government in return for its conveyance to the VFW of the land on which the cross stands, all pursuant to the statute now under review.

The cross, as built by Sandoz, consists of 4–inch diameter metal pipes painted white. The vertical bar is less than eight feet tall. It cannot be seen from the nearest highway, which lies more than 10 miles away. It is visible, however, from Cima Road, a narrow stretch of blacktop that comes within 100 feet of Sunrise Rock.

The cross has been a gathering place for Easter services since it was first put in place; and Sunrise Rock and its immediate area continue to be used as a campsite. At one time the cross was accompanied by wooden signs stating “ ‘The Cross, Erected in Memory of the Dead of All Wars,’ and ‘Erected 1934 by Members of Veterans of Foregin [sic] Wars, Death Valley post 2884.’ ” Buono v. Kempthorne, 527 F.3d 758, 769 (C.A.9 2008). The signs have since disappeared, and the cross now stands unmarked.


Frank Buono, respondent here, is a retired Park Service employee who makes regular visits to the Preserve. Buono claims to be offended by the presence of a religious symbol on federal land. He filed suit in the United States District Court for the Central District of California. He alleged a violation of the Establishment Clause of the First Amendment and sought an injunction requiring the Government to remove the cross.

The litigation proceeded in what can be described as four stages. In the first, the District Court ruled in Buono's favor on opposing motions for summary judgment. Buono

559 U.S. 708

v. Norton, 212 F.Supp.2d 1202 (C.D.Cal.2002) (Buono I). As an initial matter, the court found that Buono had standing to maintain his Establishment Clause challenge. Id., at 1210–1214. On the merits, the parties agreed that the dispute should be governed by the so-called Lemon test, which the District Court formulated as follows:

“A government religious practice or symbol will survive an Establishment Clause challenge when it (1) has a secular purpose, (2) has a primary effect that neither advances nor inhibits religion, and (3) does not foster excessive state entanglement with religion.” Buono I, supra, at 1214–1215 (citing Lemon v. Kurtzman, 403 U.S. 602, 612–613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)).

The court expressly declined to consider whether the Government's actions regarding the cross had a secular purpose, 212 F.Supp.2d, at 1214–1215, or whether they caused excessive entanglement with religion, id., at 1217, n. 9. Instead, the court evaluated the primary effect of the cross by asking how it would be viewed by a “reasonable observer.” Id., at 1216. Concluding that presence of the cross on federal land conveyed an impression of governmental endorsement of religion, the court granted Buono's request for injunctive relief. The court's order in Buono I (2002 injunction) permanently forbade the Government “from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” App. to Pet. for Cert. 146a.

The United States Court of Appeals for the Ninth Circuit stayed the 2002 injunction to the extent that it required the cross to be removed or dismantled but did not forbid alternative methods of complying with the order. The Government covered

130 S.Ct. 1813

the cross, first with a tarpaulin and later with a plywood box.

On appeal, the judgment of the District Court was affirmed, both as to standing and on the merits of Buono's Establishment Clause challenge.

559 U.S. 709

Buono v. Norton, 371 F.3d 543 (C.A.9 2004) (Buono II). Like the District Court, the Court of Appeals did not decide whether the Government's action, or nonaction, with respect to the cross had been motivated by a secular purpose. Id., at 550. Its ruling was based instead on the conclusion that a reasonable observer would perceive a cross on federal land as governmental endorsement of religion. Id., at 549–550. The Government did not seek review by this Court, so that the judgment of the Court of Appeals in Buono II became final.


During the relevant proceedings, Congress enacted certain statutes related to the cross:

(1) Before Buono I was filed, Congress passed an appropriations bill that included a provision forbidding the use of governmental funds to remove the cross. Consolidated Appropriations Act, 2001, Pub.L. 106–554, § 133, 114 Stat. 2763A–230.

(2) While Buono I was pending before the District Court, Congress designated the cross and its adjoining land “as a national memorial commemorating United States participation in World War I and honoring the American veterans of that war.” Department of Defense Appropriations Act, 2002, Pub.L. 107–117, § 8137(a), 115 Stat. 2278. The...

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