One of the most troubling aspects of the Mojave Cross case's Supreme Court phase was the government's contention that because plaintiff Frank Buono, as a Christian, was not offended by the cross generally, he could not challenge this government display. The BJC argued against this position in its amicus brief. In the court's decision (pdf) today, the majority thankfully affirmed his standing to bring the case, but did not rule specifically on the state's disturbing line of reasoning:
The Government argues that Buono’s asserted injury is not personal to him and so does not confer Article III standing. As noted above, Buono does not find the cross itself objectionable but instead takes offense at the presence of a religious symbol on federal land. Buono does not claim that, as a personal matter, he has been made to feel excluded or coerced, and so, the Government contends, he cannot object to the presence of the cross.
Whatever the validity of the objection to Buono’s standing, that argument is not available to the Government at this stage of the litigation.
More quotes from the majority opinion in the extended post below:
One of the most troubling aspects of the Mojave Cross case's Supreme Court phase was the government's contention that because plaintiff Frank Buono, as a Christian, was not offended by the cross generally, he could not challenge this government display. The BJC argued against this position in its amicus brief. In the court's decision (pdf) today, the majority thankfully affirmed his standing to bring the case, but did not rule specifically on the state's disturbing line of reasoning:
The Government argues that Buono’s asserted injury is not personal to him and so does not confer Article III standing. As noted above, Buono does not find the cross itself objectionable but instead takes offense at the presence of a religious symbol on federal land. Buono does not claim that, as a personal matter, he has been made to feel excluded or coerced, and so, the Government contends, he cannot object to the presence of the cross.
Whatever the validity of the objection to Buono’s standing, that argument is not available to the Government at this stage of the litigation.
Other key quotes from the majority opinion (pdf) written by Justice Kennedy (joined by Chief Justice Roberts), on the issue of what question is to be considered, and should have been considered by the trial court:
The question now before the Court is whether the District Court properly enjoined the Government from implementing the land-transfer statute. The District Court did not consider whether the statute, in isolation, would have violated the Establishment Clause, and it did not forbid the land transfer as an independent constitutional violation. Rather, the court enjoined compliance with the statute on the premise that the relief was necessary to protect the rights Buono had secured through the 2002 injunction.
…
Here, the District Court did not engage in the appropriate inquiry. The land-transfer statute was a substantial change in circumstances bearing on the propriety of the requested relief. The court, however, did not acknowledge the statute’s significance. It examined the events that led to the statute’s enactment and found an intent to prevent removal of the cross. Deeming this intent illegitimate, the court concluded that nothing of moment had changed.This was error. Even assuming that the land-transfer statute was an attempt to prevent removal of the cross, it does not follow that an injunction against its implementation was appropriate. 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.
Outlining the context the trial court should have considered before dismissing Congress' land transfer:
Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message. Placement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.
Time also has played its role. The cross had stood on Sunrise Rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness. Members of the public gathered regularly at Sunrise Rock to pay their respects. Rather than let the cross deteriorate, community members repeatedly took itupon themselves to replace it. Congress ultimately desig-nated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that con-stitute our national heritage. It is reasonable to interpret the congressional designation as giving recognition to the historical meaning that the cross had attained.
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 the cross was seen as honoring. Deeming neither alternative to be satisfactory, Congress enacted the statute here at issue. Congress, of course, may not use its legislative powers to reopen final judgments. That principle, however, was not a bar to this statute. The Government’s right to transfer the land was not adjudicated in Buono I or compromised by the 2002 injunction.
On deference to congressional action:
In belittling the Government’s efforts as an attempt to“evade” the injunction, the District Court had things backwards. Congress’s prerogative to balance opposing interests and its institutional competence to do so provide one of the principal reasons for deference to its policy determinations. Here, Congress adopted a policy with respect to land it now owns in order to resolve a specific controversy. . . . The land-transfer statute embodies Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views. That judgment should not have been dismissed as an evasion, for the statute brought about a change of law and a congressional statement of policy applicable to the case.
On the "questionable" conclusion of the trial court that the presence of the cross gives the perception of government endorsement of religion (a determination Justice Kennedy acknowledges is not before the Court), and its improper use of that conclusion in enjoining the land transfer:
Although, for purposes of the opinion, the propriety of the 2002 injunction may be assumed, the following discussion should not be read to suggest this Court’s agreement with that judgment, some aspects of which may be questionable. The goal of avoiding governmental endorsement does 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 governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.
Even assuming the propriety of the original relief, however, the question before the District Court in Buono III was whether to invalidate the land transfer. Given the sole reliance on perception as a basis for the 2002 injunction, one would expect that any relief grounded on that decree would have rested on the same basis. But the District Court enjoined the land transfer on an entirely different basis: its suspicion of an illicit governmental purpose. The court made no inquiry into the effect that knowledge of the transfer of the land to private ownership would have had on any perceived governmental endorsement of religion, the harm to which the 2002 injunction was addressed. The District Court thus used an injunction granted for one reason as the basis for enjoining conduct that was alleged to be objectionable for a different reason.
In conclusion:
The District Court did not attempt to reassess the findings in Buono I in light of the policy of accommodation that Congress had embraced. Rather, the District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure 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.
On the limited nature of this ruling:
The land-transfer statute’s bearing on this dispute must first be determined. To date, this Court’s jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules. In light of the finding of unconstitutionality in Buono I, and the highly fact-specific nature of the inquiry, it is best left to the District Court to undertake the analysis in the first instance. On remand, if Buono continues to challenge implementation of the statute, the District Court should conduct a proper inquiry as described above.
Justice Alito concurred (pp. 26-32) with the primary holding, but disagreed with the decision to return the case to the trial court to further consider the constitutionality of the land transfer statute. And Justices Scalia and Thomas, in a concurring opinion (pp. 33-39) dispute the plaintiff's standing to challenge a symbol not located on federal land.
