In Salazar v. Buono 559 U.S. 700 (2010), a sharply divided U.S. Supreme Court ruled 5-4 that the government could transfer land upon which a cross sat since 1934 to a private party without violating the Establishment Clause.
Christian cross on federal land in Mojave Desert brought First Amendment question
In 1934, private citizens placed a Latin cross in the Mojave Desert to honor American soldiers. The cross sits on federal land. The cross had been repaired many times through the years, including by private citizen Henry Sandoz in 1998. Sandoz sought to transfer land with the federal government, such that Sandoz would receive the land upon which the cross sits.
Frank Buono, a retired Park Service employee, contended that the cross’ placement on federal land violates the Establishment Clause of the First Amendment. He sued in a federal district court in California, seeking an injunction ordering the government to remove the cross. The district court ruled that Buono had standing to sue and granted Buono’s request for injunctive relief. The Ninth U.S. Circuit Court of Appeals affirmed.
Retired park service employee won injunction to stop cross transfer to private land
Congress then passed a law, prohibiting the removal of the cross from federal land. Congress also passed a land-transfer statute that would move the cross from federal law to privately owned land.
After his victory in the Ninth Circuit, Buono returned to the federal district court to prevent the land transfer. The district court again ruled in Buono’s favor and determined the land transfer was invalid. The Ninth Circuit again affirmed.
Supreme Court said cross was not placed to promote Christian message
On further appeal, the U.S. Supreme Court agreed that Buono had standing, but ruled that the lower courts failed to consider the full context behind Congress’ passage of the land-transfer law.
“Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World War I,” wrote Justice Anthony Kennedy in his plurality opinion. “Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message.”
Kennedy also pointed out that the cross had stood on the land for nearly 70 years, a factor the lower courts did not factor enough into their analysis. Kennedy also reasoned that respect for a coordinate branch of government means that a court should not invalidate the law unless it is clearly unconstitutional.
Justice Samuel Alito concurred in the judgment, but wrote separately to say that he would not remand and would instead uphold the land-transfer statute from an Establishment Clause challenge.
Justice Antonin Scalia also wrote a concurring opinion, joined by Justice Clarence Thomas. Scalia reasoned that Buono lacked standing to file the lawsuit, because “he failed to allege any actual or imminent injury.”
Dissenting justices thought cross represented endorsement of religion
Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, dissented. Stevens believed that the cross represented an impermissible governmental endorsement of religion. “Congress’ intent to preserve the display of the cross maintains the Government’s endorsement of the cross,” he wrote.
Justice Stephen Breyer wrote a separate dissent, reasoning that the case could be decided based on the law of injunctions. Breyer would defer to the district court’s broad powers to craft an injunction to fit the remedy it deemed necessary.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2017.