Retiring Justice John Paul Stevens wrote a dissenting opinion (pp. 40-65) in yesterday's Salazar v. Buono ruling (pdf), joined by Justices Ginsburg and Sotomayor.

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.

See more excerpts from Justice Stevens' dissent, as well as Justice Breyer's, below in the extended post below. (For excerpts from today's majority opinion, written by Justice Kennedy, see my earlier post here.)

Retiring Justice John Paul Stevens wrote a dissenting opinion (pp. 40-65) in today's Salazar v. Buono ruling (pdf), joined by Justices Ginsburg and Sotomayor.

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.

See more excerpts from Justice Stevens' dissent, as well as Justice Breyer's, below. (For excerpts from today's majority opinion, written by Justice Kennedy, see my earlier post here.)

 On the land transfer's violation of the trial court's injunction:

The 2002 injunction barred the Government from “permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” The land-transfer statute mandated transfer of the land to an organization that has announced its intention to maintain the cross on Sunrise Rock. That action surely “permit[s]” the display of the cross. See Oxford English Dictionary. True, the Government would no longer exert direct control over the cross. But the transfer itself would be an act permitting its display.

Moreover, [Congress' action] was designed specifically to foster the display of the cross. Regardless of why the Government wanted to “accommodat[e]” the interests associated with its display, ante, at 13 (plurality opinion), it was not only foreseeable 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.

On the cross' endorsement of religion:

In my view, the transfer ordered by [Congress' legislation] would not end government 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 that the 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 the display of the cross maintains the Government’s endorsement of the cross.

The plurality does not conclude to the contrary; that is, it does not decide that the transfer would end government endorsement of the cross and the religious message it conveys. Rather, the plurality concludes that the District Court did not conduct an appropriate analysis, and it remands the case for a do-over.

On the sectarian nature of the cross:

Even though Congress recognized this cross for its military associations, the solitary cross conveys an inescapably sectarian message. As the District Court observed, it is undisputed that the “[L]atin cross is the preeminent symbol of Christianity. It is exclusively a Christian symbol, and not a symbol of any other religion.” We have recognized the significance of the Latin cross as a sectarian symbol, 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.

More fundamentally, however, the message conveyed by the cross is not open to reconsideration given the posture of this case. The plurality employs a revealing turn of phrase when it characterizes the cross as “a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views.” The days of considering the cross itself as challenged under the Establishment Clause are over; it is settled that the Government is not permitted to endorse the cross. However complex the meaning of the cross, the Court of Appeals in 2004 considered and rejected the argument that its dual symbolism as a war memorial meant that government endorsement of the cross did not amount to endorsement of religion.

 On Congress' purpose in enacting the land transfer statute:

But we are instead examining whether action taken with the purpose of preserving the display of the cross cures or continues government endorsement. In my view, that purpose continues the impermissible endorsement of—indeed, favoritism toward—the cross, regardless of why Congress chose to intervene as it did.

…Without relying on any legislative history or findings—there are none—the plurality opines that Congress wanted to keep the cross in place in order to accommodate those who might view removal as“conveying disrespect for those the cross was seen as honoring,” and it suggests that this decision was an acceptable method of “balanc[ing] opposing interests” because the cross “has complex meaning beyond the expression of religious views,” As I have already explained, the meaning of the cross (complex or otherwise) is no longer before us, and the plurality’s reliance on a “congressional statement of policy,” as negating any government endorsement of religion finds no support in logic or precedent. The cross cannot take on a nonsectarian character by congressional (or judicial) fiat, and the plurality’s evaluation of Congress’ actions is divorced from the methodology prescribed by our doctrine. 

On Congress' role versus the judiciary's:

The plurality nowhere engages with how a reasonable observer would view Congress’ “policy of accommodation” for this cross. Instead, the plurality insists that deference is owed because of “Congress’s prerogative to balance opposing interests and its institutional competence to do so.” The proper remedy for an Establishment Clause violation is a legal judgment, which is not the sort of issue for which Congress “‘has both wisdom and experience . . . that is far superior to ours.’”

Furthermore, in the Establishment Clause context, we do not accord any special deference to the legislature on account of its generic advantages as a policymaking body, and the purpose test is not “satisfied so long as any secular purpose for the government action is apparent." Nor can the Government pursue a secular aim through religious means. It is odd that the plurality ignores all of these well-settled principles in exalting this particular legislative determination.

 In conclusion:

Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect. As far as I can tell, however, it is unprecedented in the Nation’s history to designate a bare, unadorned cross as the national war memorial for a particular group of veterans. Neither the Korean War Memorial, the Vietnam War Memorial, nor the World War II Memorial commemorates our veterans’ sacrifice in sectarian or predominantly religious ways. Each of these impressive structures pays equal respect to all members of the Armed Forces who perished in the service of our Country in those conflicts.

The Mojave Desert is a remote location, far from the seat 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.

From Justice Breyer's dissent (pp 66-71), which argues the Court should not have taken up this matter in thte first place:

The injunction forbids the Government to permit the display of the cross on Sunrise Rock, and its basic purpose was to prevent a reasonable observer from believing that the Government had endorsed the cross. Under the circumstances presented to the District Court, the transfer would have resulted in such a display and might well have conveyed such a message. Consequently, the District Court’s decision that the land transfer violated the injunc-tion as written and intended was not an abuse of discretion. And that is what the Ninth Circuit properly held on appeal. What the Establishment Clause implications of the changed circumstances may be is a matter not before us.

Because my conclusion rests primarily upon the law of injunctions, because that law is fairly clear, and because we cannot properly reach beyond that law to consider the underlying Establishment Clause and standing questions, I can find no federal question of general significance in this case. I believe we should not have granted the petition for certiorari.