Salazar v. Buono

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SALAZAR, SECRETARY OF THE INTERIOR, ET AL. v.
BUONO
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 08–472. Argued October 7, 2009—Decided April 28, 2010
In 1934, members of the Veterans of Foreign Wars (VFW) placed a
Latin cross on federal land in the Mojave National Preserve (Pre
serve) to honor American soldiers who died in World War I. Claiming
to be offended by a religious symbol’s presence on federal land, re
spondent Buono, a regular visitor to the Preserve, filed this suit al
leging a violation of the First Amendment’s Establishment Clause
and seeking an injunction requiring the Government to remove the
cross. In the litigation’s first stage (Buono I), the District Court
found that Buono had standing to sue and, concluding that the pres
ence of the cross on federal land conveyed an impression of govern
mental endorsement of religion, see Lemon v. Kurtzman, 403 U. S.
602, 612–613, it granted Buono’s requested injunctive relief (2002 in
junction). The District Court did not consider whether the Govern
ment’s actions regarding the cross had a secular purpose or caused
entanglement with religion. While the Government’s appeal was
pending, Congress passed the Department of Defense Appropriations
Act, 2004, §8121(a) of which directed the Secretary of the Interior to
transfer the cross and the land on which it stands to the VFW in ex
change for privately owned land elsewhere in the Preserve (land
transfer statute). Affirming the District Court’s judgment both as to
standing and on the merits, the Ninth Circuit declined to address the
statute’s effect on Buono’s suit or the statute’s constitutionality
(Buono II). Because the Government did not seek review by this
Court, the Court of Appeals’ judgment became final. Buono then re
turned to the District Court seeking injunctive relief against the land
transfer, either through enforcement or modification of the 2002 in
junction. In 2005, that court rejected the Government’s claim that
2 SALAZAR v. BUONO
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the transfer was a bona fide attempt to comply with the injunction,
concluding, instead, that it was actually an invalid attempt to keep
the cross on display. The court granted Buono’s motion to enforce the
2002 injunction; denied as moot his motion to amend it; and perma
nently enjoined the Government from implementing the land
transfer statute (Buono III). The Ninth Circuit again affirmed,
largely following the District Court’s reasoning.
Held: The judgment is reversed, and the case is remanded.
502 F. 3d 1069 and 527 F. 3d 758, reversed and remanded.
JUSTICE KENNEDY, joined in full by THE CHIEF JUSTICE and in part
by JUSTICE ALITO, concluded:
1. Buono has standing to maintain this action. Whatever the valid
ity of the Government’s argument that Buono’s asserted injury—
offense at a religious symbol’s presence on federal land—is not per
sonal to him and so does not confer Article III standing, that argu
ment is not available at this stage of the litigation. The District
Court rejected the argument in Buono I, the Ninth Circuit affirmed
in Buono II, and the Court of Appeals’ judgment became final and
unreviewable upon the expiration of the 90-day deadline for filing a
certiorari petition, 28 U. S. C. §2101(c). Moreover, Buono had stand
ing in Buono III to seek application of the injunction against the
land-transfer statute. A party that obtains a judgment in its favor
acquires a “judicially cognizable” interest in ensuring compliance
with that judgment. See Allen v. Wright, 468 U. S. 737. 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 sufficiently
personal and concrete to support his standing, given the rights he ob
tained under the earlier decree against the same party as to the same
cross 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’s
order. Pp. 7–9.
2. The District Court erred in enjoining the Government from im
plementing the land-transfer statute on the premise that the relief
was necessary to protect Buono’s rights under the 2002 injunction.
Pp. 9–18.
(a) A court may order an injunction only after taking into account
all the circumstances bearing on the need for prospective relief. See,
e.g., United States v. Swift & Co., 286 U. S. 106, 114. Here, the Dis
trict 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. By dismissing as illicit the
motives of Congress in passing it, the District Court took insufficient
Cite as: 559 U. S. ____ (2010) 3
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account of the context in which the statute was enacted and the rea
sons for its passage. 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 the
statute 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 the
cross 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 a
framework 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.
(b) Where legislative action undermines the basis for previous re
lief, the relevant question is whether an ongoing exercise of the
court’s equitable authority is supported by the prior showing of ille
gality, judged against the claim that changed circumstances render
prospective relief inappropriate. The District Court granted the 2002
injunction based solely on its conclusion that the presence of the cross
on federal land conveyed an impression of governmental endorsement
of religion, and the Ninth Circuit affirmed on the same grounds. Nei
ther court considered whether the Government had acted based on an
improper purpose. Given this sole reliance on perception, any further
relief grounded on the injunction should have rested on the same ba
sis. But the District Court used an injunction granted for one reason
(perceived governmental endorsement) as the basis for enjoining con
duct that was alleged to be objectionable for a different reason (an il
licit governmental purpose). Ordering relief under such circum
stances was improper. The court failed to consider whether the
change in law and circumstances effected by the land-transfer statute
had rendered the “reasonable observer” standard inappropriate to re
solve the dispute. Nor did the court attempt to reassess Buono I’s
findings in light of the accommodation policy embraced by Congress.
Rather, it concentrated solely on the religious aspects of the cross, di
vorced from its background and context. Pp. 13–17.
(c) The same respect for a coordinate branch of Government that
forbids striking down an Act of Congress except upon a clear showing
of unconstitutionality, see, e.g., United States v. Morrison, 529 U. S.
598, 607, requires that a congressional command be given effect
unless no legal alternative exists. Even if, contrary to the congres
4 SALAZAR v. BUONO
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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. See, e.g., Ayotte v. Planned Par
enthood of Northern New Eng., 546 U. S. 320, 329. On remand, that
court should conduct a proper inquiry into the continued necessity for
injunctive relief in light of the statute. Pp. 17–18.
JUSTICE ALITO concluded that this case should not be remanded for
the lower courts to decide whether implementation of the land
transfer statute would violate the District Court’s injunction or the
Establishment Clause. Rather, because the factual record has been
sufficiently developed to permit resolution of these questions, he
would decide them and hold that the statute may be implemented.
The case’s singular circumstances presented Congress with a delicate
problem. Its solution was an approach designed to eliminate any
perception of religious sponsorship stemming from the location of the
cross on federally owned land, while avoiding the disturbing symbol
ism that some would associate with the destruction of this historic
monument. The mechanism Congress selected is quite common in
the West, a “land exchange,” whereby ownership of the land on which
the cross is located would be transferred to the VFW in exchange for
another nearby parcel of equal value. The land transfer would not
violate the District Court injunction, the obvious meaning of which
was simply that the Government could not allow the cross to remain
on federal land. Nor would the statute’s implementation constitute
an endorsement of religion in violation of the Establishment Clause.
The so-called “endorsement test” views a challenged religious display
through the eyes of a hypothetical reasonable observer aware of the
history and all other pertinent facts relating to the display. Here,
therefore, this observer would be familiar with the monument’s origin
and history and thereby appreciate that the transfer represents an
effort by Congress to address a unique situation and to find a solution
that best accommodates conflicting concerns. Finally, the statute
was not enacted for the illicit purpose of embracing the monument’s
religious message but to commemorate the Nation’s war dead and to
avoid the disturbing symbolism that would have been created by the
monument’s destruction. Pp. 1–7.
JUSTICE SCALIA, joined by JUSTICE THOMAS, concluded that this
Court need not—indeed, cannot—decide this case’s merits because
Buono lacks Article III standing to pursue the relief he seeks, which
is not enforcement of the original injunction but expansion of it. By
enjoining the Government from implementing the statute at issue,
the District Court’s 2005 order went well beyond the original injunc
tion’s proscription of the cross’s display on public property. Because
Cite as: 559 U. S. ____ (2010) 5
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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 speculative
whether the cross will remain in place, and in any event Buono has
made clear, by admitting he has no objection to Christian symbols on
private property, that he will not be offended. Neither district courts’
discretion to expand injunctions they have issued nor this District
Court’s characterization of its 2005 order as merely enforcing the ex
isting injunction makes any difference. If in fact a court awards new
relief, it must have Article III jurisdiction to do so. Pp. 1–7.
KENNEDY, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined
in part. ROBERTS, C. J., filed a concurring opinion. ALITO, J., filed an
opinion concurring in part and concurring in the judgment. SCALIA, J.,
filed an opinion concurring in the judgment, in which THOMAS,
J., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG
and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion.
Cite as: 559 U. S. ____ (2010) 1
Opinion of KENNEDY, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–472
_________________
KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS v. FRANK BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 28, 2010]
JUSTICE KENNEDY announced the judgment of the Court
and delivered an opinion, in which THE CHIEF JUSTICE
joins and JUSTICE ALITO joins in part.
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 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. 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.
I
A
The Mojave National Preserve (Preserve) spans ap
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Opinion of KENNEDY, J.
proximately 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 For
eign 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 bars—a vertical one 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 pre
pared 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 diame
ter 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 visi
ble, however, from Cima Road, a narrow stretch of black
top 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
Cite as: 559 U. S. ____ (2010) 3
Opinion of KENNEDY, J.
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 (CA9 2008). The signs have since
disappeared, and the cross now stands unmarked.
B
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 v. Norton, 212 F. Supp. 2d 1202 (CD 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 sur
vive 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. Kurtz
man, 403 U. S. 602, 612–613 (1971)).
The court expressly declined to consider whether the
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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 govern
mental 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 Cir
cuit stayed the 2002 injunction to the extent that it re
quired the cross to be removed or dismantled but did not
forbid alternative methods of complying with the order.
The Government covered the cross, first with a tarpaulin
and later with a plywood box.
On appeal, the judgment of the District Court was af
firmed, both as to standing and on the merits of Buono’s
Establishment Clause challenge. Buono v. Norton, 371
F. 3d 543 (CA9 2004) (Buono II). Like the District Court,
the Court of Appeals did not decide whether the Govern
ment’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 reason
able 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.
C
During the relevant proceedings, Congress enacted
certain statutes related to the cross:
Cite as: 559 U. S. ____ (2010) 5
Opinion of KENNEDY, J.
(1) Before Buono I was filed, Congress passed an appro
priations 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 partici
pation in World War I and honoring the American veter
ans of that war.” Department of Defense Appropriations
Act, 2002, Pub. L. 107–117, §8137(a), 115 Stat. 2278. The
Secretary of the Interior was directed to expend up to
$10,000 to acquire a replica of the original cross and its
memorial plaque and to install the plaque at a suitable
nearby location. §8137(c).
(3) Three months after Buono I was decided, Congress
again prohibited the spending of governmental funds to
remove the cross. Department of Defense Appropriations
Act, 2003, Pub. L. 107–248, §8065(b), 116 Stat. 1551.
(4) While the Government’s appeal in Buono II was
pending, Congress passed a statute (land-transfer statute)
directing the Secretary of the Interior to transfer to the
VFW the Government’s interest in the land that had been
designated a national memorial. Department of Defense
Appropriations Act, 2004, Pub. L. 108–87, §8121(a), 117
Stat. 1100. In exchange, the Government was to receive
land elsewhere in the preserve from Henry Sandoz and his
wife. Ibid. Any difference in value between the two par
cels would be equalized through a cash payment.
§§8121(c), (d). The land-transfer statute provided that the
property would revert to the Government if not main
tained “as a memorial commemorating United States
participation in World War I and honoring the American
veterans of that war.” §8121(e), 117 Stat. 1100. The
statute presents a central issue in this case.
The Court of Appeals in Buono II did not address the
6 SALAZAR v. BUONO
Opinion of KENNEDY, J.
effect on the suit of a potential land transfer under the
statute. The court noted that the transfer might “take as
long as two years to complete,” 371 F. 3d, at 545, and that
its effect was not yet known, id., at 545–546. The court
thus “express[ed] no view as to whether a transfer com
pleted under [the statute] would pass constitutional mus
ter.” Id., at 546.
D
After the Court of Appeals affirmed in Buono II, Buono
returned to the District Court seeking to prevent the land
transfer. He sought injunctive relief against the transfer,
either through enforcement or modification of the 2002
injunction. In evaluating his request the trial court de
scribed the relevant question as whether the land transfer
was a bona fide attempt to comply with the injunction (as
the Government claimed), or a sham aimed at keeping the
cross in place (as Buono claimed). Buono v. Norton, 364
F. Supp. 2d 1175, 1178 (CD Cal. 2005) (Buono III). In
Buono III, the court did not consider whether the transfer
itself was an “independent violation of the Establishment
Clause.” Id., at 1182, n. 8. The court nevertheless con
cluded that the transfer was an attempt by the Govern
ment to keep the cross atop Sunrise Rock and so was
invalid. The court granted Buono’s motion to enforce the
2002 injunction; denied as moot his motion to amend it;
and permanently enjoined the Government from imple
menting the land-transfer statute. Id., at 1182.
The Court of Appeals again affirmed, largely following
the reasoning of the District Court. Buono v. Kempthorne,
502 F. 3d 1069 (CA9 2007). The Government’s motion for
rehearing en banc was denied over a dissent by Judge
O’Scannlain, 527 F. 3d 758, and this Court granted certio
rari, 555 U. S. ___ (2009).
Cite as: 559 U. S. ____ (2010) 7
Opinion of KENNEDY, J.
II
Before considering the District Court’s order on the
merits, the first inquiry must be with respect to Buono’s
standing to maintain this action. To demonstrate stand
ing, a plaintiff must have “alleged such a personal stake in
the outcome of the controversy as to warrant his invoca
tion of federal-court jurisdiction.” Horne v. Flores, 557
U. S. ___, ___ (2009) (slip op., at 8) (internal quotation
marks omitted). 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. Brief for Petitioners 12–17.
Whatever the validity of the objection to Buono’s stand
ing, that argument is not available to the Government at
this stage of the litigation. When Buono moved the Dis
trict Court in Buono I for an injunction requiring the
removal of the cross, the Government raised the same
standing objections it proffers now. Rejecting the Gov
ernment’s position, the District Court entered a judgment
in Buono’s favor, which the Court of Appeals affirmed in
Buono II. The Government did not seek review in this
Court. The judgment became final and unreviewable upon
the expiration of the 90-day deadline under 28 U. S. C.
§2101(c) for filing a petition for certiorari. Toledo Scale
Co. v. Computing Scale Co., 261 U. S. 399, 418 (1923); see
Missouri v. Jenkins, 495 U. S. 33, 45 (1990) (90-day dead
line is “mandatory and jurisdictional”). The Government
cannot now contest Buono’s standing to obtain the final
judgment in Buono I.
Of course, even though the Court may not reconsider
whether Buono had standing to seek the 2002 injunction,
8 SALAZAR v. BUONO
Opinion of KENNEDY, J.
it is still necessary to evaluate his standing in Buono III to
seek application of the injunction against the land
transfer statute. That measure of relief is embodied in the
judgment upon which we granted review.
This was a measure of relief that Buono had standing to
seek. A party that obtains a judgment in its favor ac
quires a “judicially cognizable” interest in ensuring com
pliance with that judgment. See Allen v. Wright, 468 U. S.
737, 763 (1984) (plaintiffs’ right to enforce a desegregation
decree to which they were parties is “a personal interest,
created by law, in having the State refrain from taking
specific actions”). Having obtained a final judgment
granting relief on his claims, Buono had standing to seek
its vindication.
The Government does not deny this proposition as a
general matter. Instead, it argues that Buono was not
seeking to vindicate—but rather to extend—the 2002
injunction. The first injunction forbade the Government
from maintaining the cross on Sunrise Rock; yet in Buono
III he sought to preclude the land transfer, a different
governmental action. The Government contends that
Buono lacked standing to seek this additional relief.
Reply Brief for Petitioners 5.
The Government’s argument, however, is properly ad
dressed to the relief granted by the judgment below, not to
Buono’s standing to seek that relief. The Government has
challenged whether appropriate relief was granted in
Buono III in light of the relevant considerations and legal
principles, and we shall consider these questions. The
standing inquiry, by contrast, turns on the alleged injury
that prompted the plaintiff to invoke the court’s jurisdic
tion in the first place. Buono’s entitlement to an injunc
tion having been established in Buono I and II, he sought
in Buono III to prevent the Government from frustrating
or evading that injunction. Based on the rights he ob
tained under the earlier decree—against the same party,
Cite as: 559 U. S. ____ (2010) 9
Opinion of KENNEDY, J.
regarding the same cross and the same land—his interests
in doing so were sufficiently personal and concrete to
support his standing. Although Buono also argued that
the land transfer should be prohibited as an “independent”
Establishment Clause violation, the District Court did not
address or order relief on that claim, which is not before
us. Buono III, 364 F. Supp. 2d, at 1182, n. 8. This is not a
case in which a party seeks to import a previous standing
determination into a wholly different dispute.
In arguing that Buono sought to extend, rather than to
enforce, the 2002 injunction, the Government in essence
contends that the injunction did not provide a basis for
the District Court to invalidate the land transfer. This is
not an argument about standing but about the merits of
the District Court’s order. Those points now must be
addressed.
III
The procedural history of this litigation must be consid
ered to identify the issues now subject to review. The
District Court granted the 2002 injunction after conclud
ing that a cross on federal land violated the Establishment
Clause. The Government unsuccessfully challenged that
conclusion on appeal, and the judgment became final upon
completion of direct review. At that point, the judgment
“became res judicata to the parties and those in privity
with them, not only as to every matter which was offered
and received to sustain or defeat the claim or demand, but
as to any other admissible matter which might have been
offered for that purpose.” Travelers Indemnity Co. v.
Bailey, 557 U. S. ___, ___ (2009) (slip op., at 14) (internal
quotation marks omitted). The Government therefore
does not—and could not—ask this Court to reconsider the
propriety of the 2002 injunction or the District Court’s
reasons for granting it.
The question now before the Court is whether the Dis
10 SALAZAR v. BUONO
Opinion of KENNEDY, J.
trict Court properly enjoined the Government from im
plementing 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. Buono III, supra, at 1182, n. 8. 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.
An injunction is an exercise of a court’s equitable au
thority, to be ordered only after taking into account all of
the circumstances that bear on the need for prospective
relief. See United States v. Swift & Co., 286 U. S. 106, 114
(1932). See also Weinberger v. Romero-Barcelo, 456 U. S.
305, 312 (1982); Hecht Co. v. Bowles, 321 U. S. 321, 329
(1944); 11A C. Wright, A. Miller, & M. Kane, Federal
Practice and Procedure §2942, pp. 39–42 (2d ed. 1995)
(hereinafter Wright & Miller). Equitable relief is not
granted as a matter of course, see Weinberger, 456 U. S.,
at 311–312, and a court should be particularly cautious
when contemplating relief that implicates public interests,
see id., at 312 (“In exercising their sound discretion, courts
of equity should pay particular regard for the public con
sequences in employing the extraordinary remedy of in
junction”); Harrisonville v. W. S. Dickey Clay Mfg. Co., 289
U. S. 334, 338 (1933) (“Where an important public interest
would be prejudiced, the reasons for denying the injunc
tion may be compelling”). Because injunctive relief “is
drafted in light of what the court believes will be the
future course of events, . . . a court must never ignore
significant changes in the law or circumstances underlying
an injunction lest the decree be turned into an ‘instrument
of wrong.’ ” Wright & Miller §2961, at 393–394 (quoting
Swift & Co., supra, at 115).
Here, the District Court did not engage in the appropri
ate inquiry. The land-transfer statute was a substantial
Cite as: 559 U. S. ____ (2010) 11
Opinion of KENNEDY, J.
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 implementa
tion 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.
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. Cf. County of Allegheny v. American Civil Liber
ties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 661
(1989) (KENNEDY, J., concurring in judgment in part and
dissenting in part) (“[T]he [Establishment] Clause forbids
a city to permit the permanent erection of a large Latin
cross on the roof of city hall . . . because such an obtrusive
year-round religious display would place the government’s
weight behind an obvious effort to proselytize on behalf of
a particular religion”). Placement of the cross on Govern
ment-owned land was not an attempt to set the imprima
tur of the state on a particular creed. Rather, those who
erected the cross intended simply to honor our Nation’s
fallen soldiers. See Brief for Veterans of Foreign Wars of
the United States et al. as Amici Curiae 15 (noting that
the plaque accompanying the cross “was decorated with
VFW decals”).
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 com
12 SALAZAR v. BUONO
Opinion of KENNEDY, J.
memorated had become entwined in the public conscious
ness. See ibid. Members of the public gathered regularly
at Sunrise Rock to pay their respects. Rather than let the
cross deteriorate, community members repeatedly took it
upon 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. See note following 16
U. S. C. §431 (listing officially designated national memo
rials, including the National D-Day Memorial and the
Vietnam Veterans Memorial). Research discloses no other
national memorial honoring American soldiers—more
than 300,000 of them—who were killed or wounded in
World War I. See generally A. Leland & M. Oboroceanu,
Congressional Research Service Report for Congress,
American War and Military Operations Casualties: Lists
and Statistics 2 (2009). It is reasonable to interpret the
congressional designation as giving recognition to the
historical meaning that the cross had attained. Cf. Van
Orden v. Perry, 545 U. S. 677, 702–703 (2005) (BREYER, J.,
concurring in judgment) (“40 years” without legal chal
lenge to a Ten Commandments display “suggest that the
public visiting the [surrounding] grounds has considered
the religious aspect of the tablets’ message as part of what
is a broader moral and historical message reflective of a
cultural heritage”).
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. Cf. id., at 704 (to invalidate a longstanding
Ten Commandments display might “create the very kind
of religiously based divisiveness that the Establishment
Clause seeks to avoid”). Deeming neither alternative to be
satisfactory, Congress enacted the statute here at issue.
Congress, of course, may not use its legislative powers to
Cite as: 559 U. S. ____ (2010) 13
Opinion of KENNEDY, J.
reopen final judgments. See Plaut v. Spendthrift Farm,
Inc., 514 U. S. 211, 225–226 (1995). That principle, how
ever, 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.
In belittling the Government’s efforts as an attempt to
“evade” the injunction, Buono III, 364 F. Supp. 2d, at
1182, the District Court had things backwards. Con
gress’s prerogative to balance opposing interests and its
institutional competence to do so provide one of the princi
pal reasons for deference to its policy determinations. See
Patsy v. Board of Regents of Fla., 457 U. S. 496, 513
(1982). Here, Congress adopted a policy with respect to
land it now owns in order to resolve a specific controversy.
Congress, the Executive, and the Judiciary all have a duty
to support and defend the Constitution. See United States
v. Nixon, 418 U. S. 683, 703 (1974) (“In the performance of
assigned constitutional duties each branch of the Govern
ment must initially interpret the Constitution, and the
interpretation of its powers by any branch is due great
respect from the others”). The land-transfer statute em
bodies Congress’s legislative judgment that this dispute is
best resolved through a framework and policy of accom
modation 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.
Buono maintains that any governmental interest in
keeping the cross up must cede to the constitutional con
cerns on which the 2002 injunction was based. He argues
that the land transfer would be “an incomplete remedy” to
the constitutional violation underlying the injunction and
that the transfer would make achieving a proper remedy
more difficult. Brief for Respondent 54.
14 SALAZAR v. BUONO
Opinion of KENNEDY, J.
A court must find prospective relief that fits the remedy
to the wrong or injury that has been established. See
Swift & Co., 286 U. S., at 114 (“A continuing decree of
injunction directed to events to come is subject always to
adaptation as events may shape the need”). See also
United States v. United Shoe Machinery Corp., 391 U. S.
244, 249 (1968). Where legislative action has undermined
the basis upon which relief has previously been granted, a
court must consider whether the original finding of
wrongdoing continues to justify the court’s intervention.
See Railway Employees v. Wright, 364 U. S. 642, 648–649
(1961); Pennsylvania v. Wheeling & Belmont Bridge Co.,
18 How. 421, 430–432 (1856). The relevant question is
whether an ongoing exercise of the court’s equitable au
thority is supported by the prior showing of illegality,
judged against the claim that changed circumstances have
rendered prospective relief inappropriate.
The District Court granted the 2002 injunction based
solely on its conclusion that presence of the cross on fed
eral land conveyed an impression of governmental en
dorsement of religion. The court expressly disavowed any
inquiry into whether the Government’s actions had a
secular purpose or caused excessive entanglement. Buono
I, 212 F. Supp. 2d, at 1215, 1217, n. 9. The Court of Ap
peals affirmed the injunction on the same grounds, simi
larly eschewing any scrutiny of governmental purpose.
Buono II, 371 F. 3d, at 550.
Although, for purposes of the opinion, the propriety of
the 2002 injunction may be assumed, the following discus
sion should not be read to suggest this Court’s agreement
with that judgment, some aspects of which may be ques
tionable. 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 governmen
Cite as: 559 U. S. ____ (2010) 15
Opinion of KENNEDY, J.
tal support for sectarian beliefs. The Constitution does
not oblige government to avoid any public acknowledg
ment of religion’s role in society. See Lee v. Weisman, 505
U. S. 577, 598 (1992) (“A relentless and all-pervasive
attempt to exclude religion from every aspect of public life
could itself become inconsistent with the Constitution”).
See also Corporation of Presiding Bishop of Church of
Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327,
334 (1987) (“This Court has long recognized that the gov
ernment may (and sometimes must) accommodate reli
gious practices and that it may do so without violating the
Establishment Clause” (internal quotation marks omit
ted)). 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 injunc
tion, 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. See Buono III, 364 F. Supp. 2d, at 1182. 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. Ordering relief
under such circumstances was improper—absent a finding
that the relief was necessary to address an independent
wrong. See ibid., n. 8 (noting that the court “need not
consider [Buono’s] other contention that the land transfer
itself is an independent violation of the Establishment
Clause”).
16 SALAZAR v. BUONO
Opinion of KENNEDY, J.
The District Court should have evaluated Buono’s modi
fication request in light of the objectives of the 2002 in
junction. The injunction was issued to address the im
pression conveyed by the cross on federal, not private,
land. Even if its purpose were characterized more gener
ally as avoiding the perception of governmental endorse
ment, that purpose would favor—or at least not oppose—
ownership of the cross by a private party rather than by
the Government. Cf. Pleasant Grove City v. Summum,
555 U. S. ___, ___ (2009) (slip op., at 8) (“[P]ersons who
observe donated monuments routinely—and reasonably—
interpret them as conveying some message on the property
owner’s behalf”).
Buono argues that the cross would continue to stand on
Sunrise Rock, which has no visual differentiation from the
rest of the primarily federally owned Preserve. He also
points to the reversionary clause in the land-transfer
statute requiring that the land be returned to the Gov
ernment if not maintained as a World War I memorial.
Finally, he notes that the cross remains designated a
national memorial by an Act of Congress, which arguably
would prevent the VFW from dismantling the cross even if
it wanted to do so. Brief for Respondent 37–48.
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 to
consider the Establishment Clause concerns invoked to
justify the requested relief. As a general matter, courts
considering 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, but see County of Allegheny, 492
U. S., at 668 (KENNEDY, J., concurring in judgment in part
and dissenting in part) (criticizing the “reasonable ob
server” test); Capitol Square Review and Advisory Bd. v.
Cite as: 559 U. S. ____ (2010) 17
Opinion of KENNEDY, J.
Pinette, 515 U. S. 753 763–768 (1995) (plurality opinion)
(criticizing reliance on “perceived endorsement”), it is not
clear that Buono’s claim is meritorious. That test requires
the hypothetical construct of an objective observer who
knows all of the pertinent facts and circumstances sur
rounding the symbol and its placement. See id., at 780(O’Connor, J., concurring in part and concurring in judg
ment). But see id., at 767–768 (plurality opinion) (doubt
ing the workability of the reasonable observer test). Ap
plying this test here, the message conveyed by the cross
would be assessed in the context of all relevant factors.
See Van Orden, 545 U. S., at 700 (BREYER, J., concurring
in judgment) (the Establishment Clause inquiry “must
take account of context and consequences”); Lee, supra, at
597 (“Our Establishment Clause jurisprudence remains a
delicate and fact-sensitive one”).
The District Court did not attempt to reassess the find
ings 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.
Respect for a coordinate branch of Government forbids
striking down an Act of Congress except upon a clear
showing of unconstitutionality. See United States v. Mor
rison, 529 U. S. 598, 607 (2000); El Paso & Northeastern
R. Co. v. Gutierrez, 215 U. S. 87, 96 (1909). The same
respect requires that a congressional command be given
18 SALAZAR v. BUONO
Opinion of KENNEDY, J.
effect unless no legal alternative exists. Even if, contrary
to the congressional judgment, the land transfer were
thought an insufficient accommodation in light of the
earlier finding of religious endorsement, it was incumbent
upon the District Court to consider less drastic relief than
complete invalidation of the land-transfer statute. See
Ayotte v. Planned Parenthood of Northern New Eng., 546
U. S. 320, 329 (2006) (in granting relief, “we try not to
nullify more of a legislature’s work than is necessary, for
we know that [a] ruling of unconstitutionality frustrates
the intent of the elected representatives of the people”
(internal quotation marks omitted; alteration in original));
Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987).
For instance, if there is to be a conveyance, the question
might arise regarding the necessity of further action, such
as signs to indicate the VFW’s ownership of the land. As
we have noted, Congress directed the Secretary of the
Interior to install near the cross a replica of its original
memorial plaque. One of the signs that appears in early
photographs of the cross specifically identifies the VFW as
the group that erected it.
Noting the possibility of specific remedies, however, is
not an indication of agreement about the continued neces
sity for injunctive relief. The land-transfer statute’s bear
ing 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 in
stance. On remand, if Buono continues to challenge im
plementation of the statute, the District Court should
conduct a proper inquiry as described above.
Cite as: 559 U. S. ____ (2010) 19
Opinion of KENNEDY, J.
* * *
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings.
It is so ordered.
Cite as: 559 U. S. ____ (2010) 1
ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–472
_________________
KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS v. FRANK BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 28, 2010]
CHIEF JUSTICE ROBERTS, concurring.
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).
Cite as: 559 U. S. ____ (2010) 1
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–472
_________________
KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS v. FRANK BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 28, 2010]
JUSTICE ALITO, concurring in part and concurring in the
judgment.
I join JUSTICE KENNEDY’s opinion in all respects but
one: I would not remand this case for the lower courts to
decide whether implementation of the land-transfer stat
ute enacted by Congress in 2003, Department of Defense
Appropriations Act, 2004, §8121, would violate the District
Court’s injunction or the Establishment Clause. The
factual record has been sufficiently developed to permit
resolution of these questions, and I would therefore decide
them and hold that the statute may be implemented.
The singular circumstances surrounding the monument
on Sunrise Rock presented Congress with a delicate prob
lem, and the solution that Congress devised is true to the
spirit of practical accommodation that has made the
United States a Nation of unparalleled pluralism and
religious tolerance. In brief, the situation that Congress
faced was as follows.
After service in the First World War, a group of veterans
moved to the Mojave Desert, in some cases for health
reasons.1 They joined the Veterans of Foreign Wars
——————
1 SeeMemorandum from Mark Luellen, Historian, Dept. of Interior,
to Superintendent, Mojave National Preserve (Jan. 31, 2000) (Luellen
Memo), Decl. of Charles R. Shockey in Buono v. Norton, No. EDCV01–
216–RT (CD Cal., Mar. 13, 2002) (Exh. 17); Brief for VFW et al. as
2 SALAZAR v. BUONO
Opinion of ALITO, J.
(VFW), Death Valley Post 2884, and in 1934, they raised a
simple white cross on an outcropping called Sunrise Rock
to honor fallen American soldiers.2 These veterans se
lected Sunrise Rock “in part because they believed there
was a color shading on the Rock in the shape of an Ameri
can soldier or ‘doughboy.’ ”3
One of these men was John Riley Bembry, a miner who
had served as a medic and had thus presumably witnessed
the carnage of the war firsthand.4 It is said that Mr. Bem
bry was not a particularly religious man, but he neverthe
less agreed to look after the cross and did so for some
years.5
The Sunrise Rock monument was located on land be
longing to the Federal Government, but in this part of the
country, where much of the land is federally owned,
boundaries between Government and private land are
often not marked,6 and private citizens are permitted to go
on and to use federal land for a variety of purposes.7 Al
——————
Amici Curiae 6–7, 15 (hereinafter VFW Brief); see also B. Ausmus, East
Mojave Diary 116 (1989) (hereinafter Ausmus).
2 See Luellen Memo; VFW Brief 15–16.
3 Id., at 15.
4 See Tr. of Oral Arg. 55; VFW Brief 7, 16; see also Ausmus 116.
5 See VFW Brief 7, 16.
6 See App. 79, 81 (testimony of respondent) (noting that when he first
saw the monument, he did not know whether it was on public or private
land); id., at 80 (describing Mojave Preserve as “primarily federal land
with a large amount of inholdings of non-federal land”); see also Wilkie
v. Robbins, 551 U. S. 537, 541–543 (2007).
7 See Taylor Grazing Act, 48 Stat. 1269, as amended, 43 U. S. C. §315et seq.; General Mining Act of 1872, Rev. Stat. 2319, 30 U. S. C. §22;
Andrus v. Shell Oil Co., 446 U. S. 657, 658 (1980); see also E. Nystrom,
Dept. of Interior, National Park Service, From Neglected Space To
Protected Place: An Administrative History of Mojave National Pre
serve, ch. 2 (Mar. 2003) (describing mining and grazing in Mojave
Preserve), online at http://www.nps.gov/history/history/online_books/
moja/adhi.htm (all Internet materials as visited Apr. 23, 2010, and
available in Clerk of Court’s case file).
Cite as: 559 U. S. ____ (2010) 3
Opinion of ALITO, J.
though Sunrise Rock was federally owned, Mr. Bembry
and his fellow veterans took it upon themselves to place
their monument on that spot, apparently without obtain
ing approval from any federal officials, and this use of
federal land seems to have gone largely unnoticed for
many years, in all likelihood due to the spot’s remote and
rugged location.
Sunrise Rock is situated far from any major population
center; temperatures often exceed 100 degrees Fahrenheit
in the summer; and visitors are warned of the dangers of
traveling in the area.8 As a result, at least until this
litigation, it is likely that the cross was seen by more
rattlesnakes than humans.
Those humans who made the trip to see the monument
appear to have viewed it as conveying at least two signifi
cantly different messages. See Pleasant Grove City, Utah
v. Summum, 555 U. S. ___, ___–___ (2009) (slip op., at 11–
12) (“The meaning conveyed by a monument is generally
not a simple one,” and a monument may be “interpreted by
different observers, in a variety of ways”). The cross is of
course the preeminent symbol of Christianity, and Easter
services have long been held on Sunrise Rock, 371 F. 3d
543, 548 (CA9 2004). But, as noted, the original reason for
the placement of the cross was to commemorate American
war dead and, particularly for those with searing memo
ries of The Great War, the symbol that was selected, a
plain unadorned white cross, no doubt evoked the unfor
gettable image of the white crosses, row on row, that
marked the final resting places of so many American
soldiers who fell in that conflict.
This is roughly how things stood until the plaintiff in
——————
8 See Dept. of Interior, National Park Service, Mojave National Pre
serve, Operating Hours & Seasons, http://www.nps.gov/moja/planyourvisit/
hours.htm; D. Casebier, Mojave Road Guide: An Adventure Through
Time 114 (1999); 371 F. 3d 543, 549 (CA9 2004).
4 SALAZAR v. BUONO
Opinion of ALITO, J.
this case, an employee of the National Park Service who
sometimes viewed the cross during the performance of his
duties and claims to have been offended by its presence on
federally owned land, brought this suit and obtained an
injunction restraining the Federal Government from
“permitting the display of the Latin cross in the area of
Sunrise Rock.” App. to Pet. for Cert. 146a. After the
Ninth Circuit affirmed that decision, and the Government
elected not to seek review by this Court, Congress faced a
problem.
If Congress had done nothing, the Government would
have been required to take down the cross, which had
stood on Sunrise Rock for nearly 70 years, and this re
moval would have been viewed by many as a sign of disre
spect for the brave soldiers whom the cross was meant to
honor. The demolition of this venerable if unsophisticated,
monument would also have been interpreted by some as an
arresting symbol of a Government that is not neutral but
hostile on matters of religion and is bent on eliminating
from all public places and symbols any trace of our coun
try’s religious heritage. Cf. Van Orden v. Perry, 545 U. S.
677, 704 (2005) (BREYER, J., concurring in judgment).
One possible solution would have been to supplement
the monument on Sunrise Rock so that it appropriately
recognized the religious diversity of the American soldiers
who gave their lives in the First World War. In American
military cemeteries overseas, the graves of soldiers who
perished in that war were marked with either a white
cross or a white Star of David.9 More than 3,500 Jewish
——————
9 See D. Holt, American Military Cemeteries 473, 474 (1992); see
also American Battle Monuments Commission, http://www.abmc.gov/
cemeteries / cemeteries.php (containing photographs of the two
types of markers). This policy presumably reflected the relig
ious makeup of the Armed Forces at the time of the First World
War. Today, veterans and their families may select any of 39
types of headstones. See U. S. Dept. of Veterans Affairs, Available
Cite as: 559 U. S. ____ (2010) 5
Opinion of ALITO, J.
soldiers gave their lives for the United States in World
War I,10 and Congress might have chosen to place a Star of
David on Sunrise Rock so that the monument would dupli
cate those two types of headstones. But Congress may
well have thought—not without reason—that the addition
of yet another religious symbol would have been unlikely
to satisfy the plaintiff, his attorneys, or the lower courts
that had found the existing monument to be uncon
stitutional on the ground that it impermissibly endorsed
religion.
Congress chose an alternative approach that was de
signed to eliminate any perception of religious sponsorship
stemming from the location of the cross on federally owned
land, while at the same time avoiding the disturbing
symbolism associated with the destruction of the historic
monument. The mechanism that Congress selected is one
that is quite common in the West, a “land exchange.”11
Congress enacted a law under which ownership of the
parcel of land on which Sunrise Rock is located would be
transferred to the VFW in exchange for another nearby
parcel of equal value. Congress required that the Sunrise
Rock parcel be used for a war memorial, §8121(a), 117
Stat. 1100, but Congress did not prevent the VFW from
supplementing the existing monument or replacing it with
a war memorial of a different design. Although JUSTICE
——————
Emblems of Belief for Placement on Government Headstones and
Markers, http://www.cem.va.gov/hm/hmemb.asp.
10 See J. Fredman & L. Falk, Jews in American Wars 100–101 (5th
ed. 1954); Brief for Jewish War Veterans of the United States of Amer
ica, Inc. as Amicus Curiae 33.
11 See G. Draffan & J. Blaeloch, Commons or Commodity? The Di
lemma of Federal Land Exchanges 10 (2000). Congressionally author
ized land exchanges are common. See, e.g., Consolidated Natural
Resources Act of 2008, §101(d), 122 Stat. 758; National Defense Au
thorization Act for Fiscal Year 2008, §2845, 122 Stat. 554; City of Yuma
Improvement Act, §3, 120 Stat. 3369; Act of Dec. 23, 2004, §1, 118 Stat.
3919.
6 SALAZAR v. BUONO
Opinion of ALITO, J.
STEVENS characterizes this land exchange as one that
endorses “a particular religious view,” post, at 26 (dissent
ing opinion), it is noteworthy that Congress, in which our
country’s religious diversity is well represented, passed
this law by overwhelming majorities: 95–0 in the Senate
and 407–15 in the House. See 149 Cong. Rec. H8793
(Sept. 24, 2003); id., at S11943 (Sept. 25, 2003). In my
view, there is no legal ground for blocking the implemen
tation of this law.
The dissent contends that the land transfer would vio
late the District Court injunction, but that argument, for
the reasons explained in JUSTICE SCALIA’s opinion, see
post, at 2 (concurring in judgment), is plainly unsound.
The obvious meaning of the injunction was simply that the
Government could not allow the cross to remain on federal
land.
There is also no merit in JUSTICE STEVENS’ contention
that implementation of the statute would constitute an
endorsement of Christianity and would thus violate the
Establishment Clause. Assuming that it is appropriate to
apply the so-called “endorsement test,” this test would not
be violated by the land exchange. The endorsement test
views a challenged display through the eyes of a hypo
thetical reasonable observer who is deemed to be aware of
the history and all other pertinent facts relating to a
challenged display. See ante, at 16–17 (opinion of
KENNEDY, J.). Here, therefore, this observer would be
familiar with the origin and history of the monument and
would also know both that the land on which the monu
ment is located is privately owned and that the new owner
is under no obligation to preserve the monument’s present
design. With this knowledge, a reasonable observer would
not view the land exchange as the equivalent of the con
struction of an official World War I memorial on the Na
tional Mall. Cf. post, at 26. Rather, a well-informed ob
server would appreciate that the transfer represents an
Cite as: 559 U. S. ____ (2010) 7
Opinion of ALITO, J.
effort by Congress to address a unique situation and
to find a solution that best accommodates conflicting
concerns.
Finally, I reject JUSTICE STEVENS’ suggestion that the
enactment of the land-transfer law was motivated by an
illicit 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 has
shown 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’ aim
in 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.
For these reasons, I would reverse the decision below
and remand with instructions to vacate the order prohibit
ing the implementation of the land-transfer statute.
Cite as: 559 U. S. ____ (2010) 1
SCALIA, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–472
_________________
KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS v. FRANK BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 28, 2010]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in the judgment.
I agree with the plurality that the Court of Appeals
erred in affirming the District Court’s order enjoining the
transfer of the memorial to the Veterans of Foreign Wars
(VFW). My reason, however, is quite different: In my view
we need not—indeed, cannot—decide the merits of the
parties’ dispute, because Frank Buono lacks Article III
standing to pursue the relief he seeks. The District Court
had no power to award the requested relief, and our au
thority is limited to “ ‘announcing the fact and dismissing
the cause.’ ” Steel Co. v. Citizens for Better Environment,
523 U. S. 83, 94 (1998) (quoting Ex parte McCardle, 7
Wall. 506, 514 (1869)).
The plurality is correct that Buono’s standing to obtain
the original injunction is not before us. See ante, at 7.1
——————
1 The Court of Appeals’ conclusion that Buono had standing to seek
the original injunction does not, however, control our decision here
under the law-of-the-case doctrine. That doctrine comes into play only
if an issue we are asked to resolve has already been decided in the same
litigation. See Quern v. Jordan, 440 U. S. 332, 347, n. 18 (1979). In its
earlier decision, the Ninth Circuit addressed only Buono’s standing to
seek the original injunction barring the display of the cross on public
land. See Buono v. Norton, 371 F. 3d 543, 546–548 (2004). It had no
occasion to address his standing to seek an expansion of the injunction
to bar a transfer enabling the cross’s display on private property.
2 SALAZAR v. BUONO
SCALIA, J., concurring in judgment
Nor is Buono’s standing to request enforcement of the
original injunction at issue. If he sought only to compel
compliance with the existing order, Article III would not
stand in his way.
As the plurality all but admits, however, the relief
Buono requests and the District Court awarded in this
proceeding is not enforcement of the original injunction
but expansion of it. See ante, at 15. The only reasonable
reading of the original injunction, in context, is that it
proscribed the cross’s display on federal land. Buono’s
alleged injuries arose from the cross’s presence on public
property, see App. 50, 59, and the injunction accordingly
prohibited the Government, its “employees, agents, and
those in active concert with [them] . . . 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. Barring the Government from “permitting” the
cross’s display at a particular location makes sense only if
the Government owns the location. As the proprietor, it
can remove the cross that private parties have erected and
deny permission to erect another. But if the land is pri
vately owned, the Government can prevent the cross’s
display only by making it illegal. Prohibitory legislation
does not consist of a mere refusal to “permi[t],” nor is the
enactment of legislation what the injunction commanded
(a command that would raise serious First Amendment
and separation-of-powers questions).2
——————
Moreover, Buono failed to raise the issue in his brief in opposition to
certiorari, and we may deem it waived. See this Court’s Rule 15.2; cf.
Knowles v. Iowa, 525 U. S. 113, 116, n. 2 (1998).
2 The principal dissent does not dispute that the original injunction
did not require the Government to ban the cross’s display on private
land, yet it insists that the injunction nonetheless forbade transferring
the land to a private party who could keep the cross in place. Post, at
6–7 (opinion of STEVENS, J.). But there is no basis in the injunction’s
text for treating a sale of the land to a private purchaser who does not
promise to take the cross down as “permitting” the cross’s display,
Cite as: 559 U. S. ____ (2010) 3
SCALIA, J., concurring in judgment
The District Court’s 2005 order purporting to “enforce”
the earlier injunction went well beyond barring the dis
play of the cross on public property. Id., at 98a. At
Buono’s request, the court enjoined certain Government
officials and “anyone acting in concert with them . . . from
implementing the provisions of Section 8121 of Public Law
108–87,” the statutory provision enacted after the original
injunction that directs the Executive Branch to transfer
the memorial to the VFW. Id., at 99a.
Because Buono seeks new relief, he must show (and the
District Court should have ensured) that he has standing
to pursue it. As the party invoking federal-court jurisdic
tion, Buono “bears the burden of showing that he has
standing for each type of relief sought,” Summers v. Earth
Island Institute, 555 U. S. ___, ___ (2009) (slip op., at 4);
see Los Angeles v. Lyons, 461 U. S. 95, 105 (1983). A
plaintiff cannot sidestep Article III’s requirements by
combining a request for injunctive relief for which he has
standing with a request for injunctive relief for which he
lacks standing. And for the same reason, a plaintiff can
not ask a court to expand an existing injunction unless he
has standing to seek the additional relief.
Buono must therefore demonstrate that the additional
relief he sought—blocking the transfer of the memorial to
a private party—will “redress or prevent actual or immi
nently threatened injury to [him] caused by private or
——————
when failing to forbid the cross’s presence on already-private land
within the Mojave National Preserve would not be treated as such. The
latter no less involves “allow[ing] the act or existence of” or “tol
erat[ing]” the display of the cross. Webster’s New International Dic
tionary 1824 (2d ed. 1957). The principal dissent responds that in
determining whether the transfer complies with the original injunction
we “cannot start from a baseline in which the cross has already been
transferred.” Post, at 7. But the effect of transferring the land to a
private party free to keep the cross standing is identical, so far as the
original injunction is concerned, to allowing a party who already owned
the land to leave the cross in place.
4 SALAZAR v. BUONO
SCALIA, J., concurring in judgment
official violation of law.” Summers, supra, at ___ (slip op.,
at 4). 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 statutes
compels the VFW (or any future proprietor) to keep it up.
The land reverts to the Government only if “the
conveyed 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
Moreover, Buono has not alleged, much less established,
that he will be harmed if the VFW does decide to keep the
cross. To the contrary, his amended complaint averred
that “he is deeply offended by the display of a Latin Cross
on government-owned property” but “has no objection to
Christian symbols on private property.” App. 50. In a
subsequent deposition he agreed with the statement that
“[t]he only thing that’s offensive about this cross is that
[he has] discovered that it’s located on federal land.” Id.,
at 85. And in a signed declaration several months later,
——————
3 Buono argues that the Government’s continued supervision of the
site, its reversionary interest in the property, and the memorial’s
ongoing designation as a national memorial add to the Establishment
Clause violation. Brief for Respondent 37–48. But those aspects would
be irrelevant if the cross were no longer displayed.
4 The principal dissent insists, post, at 4–5, n. 2, that it is clear the
cross will remain because the VFW asserted in an amicus brief that it
“intends to maintain and preserve the Veterans Memorial as a memo
rial to United States veterans,” and elsewhere referred to “the seven
foot-tall cross and plaque that comprise the Veterans Memorial,” Brief
for VFW of the United States et al. as Amici Curiae 4, 7. But the
group’s stated intentions do not prove that the cross will stay put. The
VFW might not follow through on its plans (this VFW post already
became “defunct” once during this litigation, id., at 34); it might move
the cross to another private parcel and substitute a different monument
on Sunrise Rock; or it might sell the land to someone else who decides
to honor the dead without the cross.
Cite as: 559 U. S. ____ (2010) 5
SCALIA, J., concurring in judgment
he reiterated that although the “presence of the cross on
federally owned land in the Preserve deeply offends [him]
and impairs [his] enjoyment of the Preserve,” he “ha[s] no
objection to Christian symbols on private property.” Id., at
64–65. In short, even assuming that being “deeply of
fended” by a religious display (and taking steps to avoid
seeing it) constitutes a cognizable injury, Buono has made
clear that he will not be offended.5
These same considerations bear upon the plurality’s
assertion that Buono has standing to “prevent the Gov
ernment from frustrating or evading” the original injunc
tion, ante, at 8. If this refers to frustration or evasion in a
narrow sense, the injunction is in no need of—indeed, is
insusceptible of—protection. It was issued to remedy the
sole complaint that Buono had brought forward: erection
of a cross on public land. And it was entirely effective in
remedying that complaint, having induced Congress to
abandon public ownership of the land. If meant in this
narrow sense, the plurality’s assertion of a need to prevent
frustration or evasion by the Government ignores the
reality that the District Court’s 2005 order awarded new
relief beyond the scope of the original injunction. The
revised injunction is directed at Buono’s new complaint
that the manner of abandoning public ownership and the
——————
5 The principal dissent argues that despite these disclaimers in
Buono’s complaint, deposition, and declaration, his real injury is his
inability “to freely use the area of the Preserve around the cross be
cause the Government’s unconstitutional endorsement of the cross will
induce him to avoid the Sunrise Rock area.” Post, at 4–5, n. 2 (internal
quotation marks and citation omitted). But the only “endorsement” of
which Buono complained was “[t]he placement of the Cross on feder
ally-owned land,” App. 59, which “offend[s]” him only because the
property “is not open to groups and individuals to erect other freestand
ing, permanent displays,” App. 50. Nothing in Buono’s complaint,
deposition, or declaration establishes that he will be unable “to freely
use the area of the Preserve” if Sunrise Rock is made private property
and its new proprietor displays the cross.
6 SALAZAR v. BUONO
SCALIA, J., concurring in judgment
nature of the new private ownership violate the Estab
lishment Clause. Now it may be that a court has subject
matter jurisdiction to prevent frustration or evasion of its
prior injunction in a broader sense—that is, to eliminate
an unconstitutional manner of satisfying that prior injunc
tion. But it surely cannot do so unless it has before it
someone who has standing to complain of that unconstitu
tional manner. If preventing frustration or evasion of an
injunction includes expanding it to cover additional ac
tions that produce no concrete harm to the original plain
tiff, our standing law in this area will make no sense.
It is no answer that a district court has discretion to
expand an injunction it has issued if it finds the existing
terms are not fulfilling the original purpose. Doubtless it
can do that, and is in that sense the master of its own
injunctions. But whether the District Court abused that
discretion by enlarging the injunction is beside the point.
What matters is that it granted relief beyond the existing
order, and that Buono must have had standing to seek the
extension.
It also makes no difference that the District Court said
it was merely enforcing its original injunction. The ques
tion is whether in fact the new order goes beyond the old
one. If so, the court must satisfy itself of jurisdiction to
award the additional relief—which includes making cer
tain the plaintiff has standing. See Steel Co., 523 U. S., at
94. That is true whether the court revisits the injunction
at a party’s request or on its own initiative; Article III’s
case-or-controversy requirement is not merely a prerequi
site to relief, but a restraint on judicial power. See Sum
mers, supra, at ___ (slip op., at 4).6
——————
6 I agree with JUSTICE BREYER that in interpreting an ambiguous
injunction we should give great weight to the interpretation of the
judge who issued it. Post, at 3 (dissenting opinion). But that does not
mean we must accept any construction a district court places upon an
order it has issued. Here there is no reasonable reading of the original
Cite as: 559 U. S. ____ (2010) 7
SCALIA, J., concurring in judgment
* * *
Keeping within the bounds of our constitutional author
ity often comes at a cost. Here, the litigants have lost
considerable time and money disputing the merits, and we
are forced to forgo an opportunity to clarify the law. But
adhering to Article III’s limits upon our jurisdiction re
spects the authority of those whom the people have chosen
to make and carry out the laws. In this case Congress has
determined that transferring the memorial to private
hands best serves the public interest and complies with
the Constitution, and the Executive defends that decision
and seeks to carry it out. Federal courts have no warrant
to revisit that decision—and to risk replacing the people’s
judgment with their own—unless and until a proper case
has been brought before them. This is not it.
——————
injunction that would bar the land transfer but would not also require
the Government to ban “the display of the Latin cross” on private land
“in the area of Sunrise Rock in the Mojave National Preserve,” App. to
Pet. for Cert. 146a—an implausible interpretation no one advocates.
Cite as: 559 U. S. ____ (2010) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–472
_________________
KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS v. FRANK BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 28, 2010]
JUSTICE STEVENS, with whom JUSTICE GINSBURG and
JUSTICE SOTOMAYOR join, dissenting.
In 2002 Congress designated a “five-foot-tall white
cross” located in the Mojave National Preserve “as a na­
tional memorial commemorating United States participa­
tion in World War I and honoring the American veterans
of that war.” Department of Defense Appropriations Act,
Pub. L. 107–117, §8137(a), 115 Stat. 2278. Later that
year, in a judgment not open to question, the District
Court determined that the display of that cross violated
the Establishment Clause because it “convey[ed] a mes­
sage of endorsement of religion.” Buono v. Norton, 212
F. Supp. 2d 1202, 1217 (CD Cal. 2002) (Buono I). The
question in this case is whether Congress’ subsequent
decision to transfer ownership of the property underlying
the cross cured that violation.
“The Establishment Clause, if nothing else, prohibits
government from ‘specifying details upon which men and
women who believe in a benevolent, omnipotent Creator
and Ruler of the world are known to differ.’ ” Van Orden v.
Perry, 545 U. S. 677, 718 (2005) (STEVENS, J., dissenting)
(quoting Lee v. Weisman, 505 U. S. 577, 641 (1992)
(SCALIA, J., dissenting)). A Latin cross necessarily sym­
bolizes one of the most important tenets upon which be­
lievers in a benevolent Creator, as well as nonbelievers,
2 SALAZAR v. BUONO
STEVENS, J., dissenting
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.
I
As the history recounted by the plurality indicates, this
case comes to us in a procedural posture that significantly
narrows the question presented to the Court. In the first
stage of this litigation, the District Court and the Court of
Appeals ruled that the Government violated the Estab­
lishment Clause by permitting the display of a single
white Latin cross at Sunrise Rock. Those courts further
ruled that the appropriate remedy was an injunction
prohibiting the Government from “permitting the display
of the Latin cross in the area of Sunrise Rock in the Mo­
jave National Preserve.” App. 39. The Government de­
clined to seek a writ of certiorari following those rulings.
Accordingly, for the purpose of this case, it is settled that
“the Sunrise Rock cross will project a message of govern­
ment endorsement [of religion] to a reasonable observer,”
Buono v. Norton, 371 F. 3d 543, 549 (CA9 2004) (Buono
II), and that the District Court’s remedy for that endorse­
ment was proper.
We are, however, faced with an additional fact: Con­
gress has enacted a statute directing the Secretary of the
Interior to transfer a 1-acre parcel of land containing the
cross to the Veterans of Foreign Wars (VFW), subject to
certain conditions, in exchange for a 5-acre parcel of land
elsewhere in the Preserve. See Department of Defense
Appropriations Act, 2004, Pub. L. 108–87, §8121, 117 Stat.
1100. The District Court found that the land transfer
Cite as: 559 U. S. ____ (2010) 3
STEVENS, J., dissenting
under §8121 “violate[d] [the] court’s judgment ordering a
permanent injunction” and did not “actually cur[e] the
continuing Establishment Clause violation.” Buono v.
Norton, 364 F. Supp. 2d 1175, 1182 (CD Cal. 2005) (Buono
III). The District Court therefore enforced its 2002 judg­
ment by enjoining the transfer, without considering
whether “the land transfer itself is an independent viola­
tion of the Establishment Clause.” Ibid., n. 8. Because
the District Court did not base its decision upon an inde­
pendent Establishment Clause violation, the constitution­
ality of the land-transfer statute is not before us. See
ante, at 10. Instead, the question we confront is whether
the District Court properly enforced its 2002 judgment by
enjoining the transfer.
In answering that question we, like the District Court,
must first consider whether the transfer would violate the
2002 injunction. We must then consider whether changed
circumstances nonetheless rendered enforcement of that
judgment inappropriate; or conversely whether they made
it necessary for the District Court to bar the transfer, even
if the transfer is not expressly prohibited by the prior
injunction, in order to achieve the intended objective of the
injunction. The plurality correctly notes that “ ‘a court
must never ignore significant changes in the law or cir­
cumstances underlying an injunction,’ ” ante, at 10 (quot­
ing 11A C. Wright, A. Miller, & M. Kane, Federal Practice
and Procedure §2961, pp. 393–394 (2d ed. 1995) (hereinaf­
ter Wright & Miller)), and “ ‘[a] continuing decree of in­
junction directed to events to come is subject always to
adaptation as events may shape the need,’ ” ante, at 14
(quoting United States v. Swift & Co., 286 U. S. 106, 114
(1932)).1 At the same time, it is axiomatic that when a
——————
1 One point of contention: I accept as a general matter that a court
must consider whether “legislative action has undermined the basis
upon which relief has previously been granted.” Ante, at 14. But the
4 SALAZAR v. BUONO
STEVENS, J., dissenting
party seeks to enforce or modify an injunction, the only
circumstances that matter are changed circumstances.
See Swift, 286 U. S., at 119 (“The injunction, whether
right or wrong, is not subject to impeachment in its appli­
cation to the conditions that existed at its making”).
I further accept that the District Court’s task was to
evaluate the changed circumstances “in light of the objec­
tives of the 2002 injunction.” Ante, at 16. This case does
not simply pit a plaintiff’s “prior showing of illegality”
against a defendant’s claim that “changed circumstances
have rendered prospective relief inappropriate.” Ante, at
14. That formulation implies that the changed circum­
stances all cut in one direction, against prospective relief,
and that the defendant has asked the court to alleviate its
obligations. But it is important to note that in this case,
the Government did not move to “alleviate or eliminate
conditions or restrictions imposed by the original decree”
so as to permit the transfer. Wright & Miller §2961, at
397. Rather, it was the beneficiary of the original injunc­
tion who went back into court seeking its enforcement or
modification in light of the transfer. Plainly, respondent
had standing to seek enforcement of a decree in his favor.2
——————
effect of the legislative action in this case is different from its effect in
our cases espousing that principle, which stand for the proposition that
if a statutory “right has been modified by the competent authority”
since the decree, then an injunction enforcing the prior version of that
right must be modified to conform to the change in the law. Pennsyl
vania v. Wheeling & Belmont Bridge Co., 18 How. 421, 432 (1856); see
also Railway Employees v. Wright, 364 U. S. 642, 651 (1961) (“In a case
like this the District Court’s authority to adopt a consent decree comes
only from the statute which the decree is intended to enforce. . . . [I]t
[must] be free to modify the terms of a consent decree when a change in
law brings those terms in conflict with statutory objectives”). In a
constitutional case such as this, legislative action may modify the facts,
but it cannot change the applicable law.
2 To the extent the Government challenges respondent’s standing to
seek the initial injunction, that issue is not before the Court for the
reasons the plurality states. See ante, at 7. Moreover, in my view
Cite as: 559 U. S. ____ (2010) 5
STEVENS, J., dissenting
Respondent argued that such action was necessary,
either to enforce the plain terms of the 2002 injunction or
to “achieve the purposes of the provisions of the decree,”
United States v. United Shoe Machinery Corp., 391 U. S.
244, 249 (1968); see Wright & Miller §2961, at 393 (“[A]
court must continually be willing to redraft the order at
the request of the party who obtained equitable relief in
order to insure that the decree accomplishes its intended
result”). Only at that point did the Government argue
that changed circumstances made prospective relief un­
necessary. This difference in focus is a subtle one, but it is
important to emphasize that the question that was before
the District Court—and that is now before us—is whether
enjoining the transfer was necessary to effectuate the
letter or logic of the 2002 judgment.
Although I agree with the plurality’s basic framework, I
disagree with its decision to remand the case to the Dis­
trict Court. The District Court already “engage[d] in the
appropriate inquiry,” ante, at 10, and it was well within its
rights to enforce the 2002 judgment. First, the District
——————
respondent has standing even under the analysis that JUSTICE SCALIA
undertakes. It is not at all “speculative,” ante, at 4 (opinion concurring
in judgment), that the VFW will continue to display the cross. VFW
Post 385, the beneficiary of the land transfer, has filed an amici brief in
this case indicating it “intends to maintain and preserve the Veterans
Memorial,” Brief for Veterans of Foreign Wars of the United States
et al. as Amici Curiae 4, by which it means the cross, id., at 7 (identify­
ing the Veterans Memorial as the “cross and plaque”). Respondent did,
in his amended complaint, aver that he was offended specifically “by
the display of a Latin Cross on government-owned property.” App. 50.
But his claimed injury is that he is “unable to freely use the area of the
Preserve around the cross,” Buono v. Norton, 371 F. 3d 543, 547 (CA9
2004) (Buono II) (internal quotation marks omitted), because the
Government’s unconstitutional endorsement of the cross will induce
him to avoid the Sunrise Rock area, even though it offers the most
convenient route to the Preserve, App. 65. That endorsement and
respondent’s resulting injury not only persist, but have been aggra­
vated by the Government’s actions since the complaint was filed.
6 SALAZAR v. BUONO
STEVENS, J., dissenting
Court properly recognized that the transfer was a means
of “permitting”—indeed, encouraging—the display of the
cross. The transfer therefore would violate the terms of
the court’s original injunction. Second, even if the transfer
would not violate the terms of the 2002 injunction, the
District Court properly took into account events that
transpired since 2002 and determined that barring the
transfer was necessary to achieve the intended result of
the 2002 decree, as the transfer would not eliminate gov­
ernment endorsement of religion.
II
The first step in the analysis is straightforward: The
District Court had to ask whether the transfer of the
property would violate the extant injunction. Under the
terms of that injunction, the answer was yes.
The 2002 injunction barred the Government from “per­
mitting the display of the Latin cross in the area of Sun­
rise Rock in the Mojave National Preserve.” App. 39. 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 11 Oxford English Dictionary
578 (2d ed. 1989) (defining “permit” as “[t]o admit or allow
the doing or occurrence of; to give leave or opportunity
for”). True, the Government would no longer exert direct
control over the cross. But the transfer itself would be an
act permitting its display.
I therefore disagree with JUSTICE SCALIA that the “only
reasonable reading of the original injunction . . . is that it
proscribed the cross’s display on federal land.” Ante, at 2
(opinion concurring in judgment). If the land were already
privately owned, JUSTICE SCALIA may be correct that the
cross’ display on Sunrise Rock would not violate the in­
junction because the Government would not have to do
anything to allow the cross to stand, and the Government
Cite as: 559 U. S. ____ (2010) 7
STEVENS, J., dissenting
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 to
take an affirmative act (transfer to private ownership)
designed to keep the cross in place. In evaluating a claim
that 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 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 Gov­
ernment 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.
III
As already noted, it was respondent, the beneficiary of
the injunction, who moved the District Court for relief.
When the beneficiary of an injunction seeks relief “to
achieve the purposes of the provisions of the decree,”
United Shoe Machinery Corp., 391 U. S., at 249, a district
court has the authority to “modify the decree so as to
achieve the required result with all appropriate expedi­
tion,” id., at 252. Thus, regardless of whether the transfer
was prohibited by the plain terms of the 2002 judgment,
the District Court properly inquired into whether enjoin­
ing the transfer was necessary to achieve the objective of
that judgment. The Government faces a high burden in
arguing the District Court exceeded its authority. A de­
cree “may not be changed in the interests of the defen­
8 SALAZAR v. BUONO
STEVENS, J., dissenting
dants if the purposes of the litigation . . . have not been
fully achieved.” Id., at 248 (emphasis deleted). And con­
trary to the Government’s position, the changed circum­
stances in this case support, rather than count against,
the District Court’s enforcement decision.
The objective of the 2002 judgment, as the plurality
grudgingly allows, was to “avoi[d] the perception of gov­
ernmental endorsement” of religion. Ante, at 16; see
Buono III, 364 F. Supp. 2d, at 1178 (analyzing “ ‘whether
government action endorsing religion has actually ceased’ ”
in light of the transfer). The parties do not disagree on
this point; rather, they dispute whether the transfer would
end government endorsement of the cross. Compare Brief
for Petitioners 21 (“Congress’s transfer of the land . . .
ends any governmental endorsement of the cross”) with
Brief for Respondent 34 (“[T]he government’s endorsement
of the Christian cross is not remedied” by the land trans­
fer). The District Court rightly found that the transfer
would not end government endorsement of the cross.
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,’ ‘favorit­
ism,’ or ‘promotion,’ the essential principle remains the
same. The Establishment Clause, at the very least, pro­
hibits 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)).
The 2002 injunction was based on a finding that display
of the cross had the effect of endorsing religion. That is,
“the Sunrise Rock cross . . . project[s] a message of gov­
ernment endorsement [of religion] to a reasonable ob­
Cite as: 559 U. S. ____ (2010) 9
STEVENS, J., dissenting
server.” Buono II, 371 F. 3d, at 549. The determination
that the Government had endorsed religion necessarily
rested on two premises: first, that the Government en­
dorsed the cross, and second, that the cross “take[s] a
position on questions of religious belief” or “ ‘mak[es] ad­
herence to religion relevant . . . to a person’s standing in
the political community,’ ” County of Allegheny, 492 U. S.,
at 594. Taking the District Court’s 2002 finding of an
Establishment Clause violation as res judicata, as we
must, the land transfer has the potential to dislodge only
the first of those premises, in that the transfer might
change the Government’s endorsing relationship with the
cross. As I explain below, I disagree that the transfer
ordered by §8121 would in fact have this result. But it is
also worth noting at the outset that the transfer statute
could not (and does not) dislodge the second premise—that
the cross conveys a religious message. Continuing gov­
ernment endorsement of the cross is thus continuing
government endorsement of religion.
In my view, the transfer ordered by §8121 would not end
government endorsement of the cross for two independ­
ently 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 memo­
rial, and that endorsement continues regardless of
whether the cross sits on public or private land. Second,
the transfer continues the existing government endorse­
ment 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 endorse­
ment of the cross.
The plurality does not conclude to the contrary; that is,
it does not decide that the transfer would end government
10 SALAZAR v. BUONO
STEVENS, J., dissenting
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. I take up each of the
purported faults the plurality finds in the District Court’s
analysis in my examination of the reasons why the trans­
fer does not cure the existing Establishment Clause
violation.
Perception of the Cross Post-Transfer
The 2002 injunction was based upon a finding of im­
permissible effect: The “Sunrise Rock cross . . . project[s] a
message of government endorsement [of religion] to a
reasonable observer.” Buono II, 371 F. 3d, at 549. The
transfer would not end that impermissible state of affairs
because the cross, post-transfer, would still have “the
effect of communicating a message of government en­
dorsement . . . of religion.” Lynch, 465 U. S., at 692(O’Connor, J., concurring). As the Court of Appeals cor­
rectly found, “[n]othing in the present posture of the case
alters” the conclusion that a “reasonable observer would
perceive governmental endorsement of the message” the
cross conveys. Buono v. Kempthorne, 527 F. 3d 758, 783
(CA9 2008) (Buono IV).3
——————
3 The plurality faults the District Court for not engaging in this
analysis, but the District Court did implicitly consider how a reason­
able observer would perceive the cross post-transfer when it analyzed
the terms of the transfer, the Government’s continuing property rights
in the conveyed land, and the history of the Government’s efforts to
preserve the cross. Furthermore, the Court of Appeals affirmed the
District Court’s order on the express ground that a reasonable observer
would still perceive government endorsement of the cross. See Buono
IV, 527 F. 3d, at 782–783.
THE CHIEF JUSTICE suggests this is much ado about nothing because
respondent’s counsel conceded that the injunction would not be violated
were the Government to have gone through an “empty ritual” of taking
down the cross before transferring the land. Ante, at 1 (concurring
opinion). But in the colloquy to which THE CHIEF JUSTICE refers,
Cite as: 559 U. S. ____ (2010) 11
STEVENS, J., dissenting
In its original judgment, the Court of Appeals found
that a well-informed reasonable observer would perceive
government endorsement of religion, notwithstanding the
cross’ initial “placement by private individuals,” based
upon the following facts: “that the cross rests on public
land[,] . . . that Congress has designated the cross as a war
memorial and prohibited the use of funds to remove it, and
that the Park Service has denied similar access for expres­
sion by an adherent of the . . . Buddhist faith.” Buono II,
371 F. 3d, at 550. 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 follow­
ing facts: The cross was once on public land, the Govern­
ment was enjoined from permitting its display, Congress
transferred it to a specific purchaser in order to preserve
its display in the same location, and the Government
maintained 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 government
endorsement of the cross.4
——————
counsel assumed that the Government would not retain a reversionary
interest in the land, and that the cross would not retain its designation
as a national memorial. See Tr. of Oral Arg. 44–45. 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 hypotheti­
cal 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 to
execute a simple land transfer.
4 A less informed reasonable observer, see Capitol Square Review and
Advisory Bd. v. Pinette, 515 U. S. 753, 807 (1995) (STEVENS, J., dissent­
ing), would reach the same conclusion because the cross would still
appear to stand on Government property. The transfer merely “carv[es]
out a tiny parcel of property in the midst of this vast Preserve—like a
donut hole with the cross atop it.” Buono v. Kempthorne, 527 F. 3d
758, 783 (CA9 2008). For any reasonable observer, then, the transfer
simply would not change the effect of the cross.
12 SALAZAR v. BUONO
STEVENS, J., dissenting
Particularly important to this analysis is that although
the transfer might remove the implicit endorsement that
presence on public land signifies, see Capitol Square
Review and Advisory Bd. v. Pinette, 515 U. S. 753, 801
(1995) (STEVENS, J., dissenting) (“The very fact that a sign
is installed on public property implies official recognition
and reinforcement of its message”), it would not change
the fact that the Government has taken several explicit
actions to endorse this cross. In its decision upholding the
initial entry of the injunction, the Court of Appeals found
those actions contributed to a reasonable observer’s per­
ception of government endorsement. Buono II, 371 F. 3d,
at 550. Their significance does not depend upon the own­
ership of the land.
In 2000, and again after the District Court had entered
its initial injunction, Congress passed legislation prohibit­
ing the use of any federal funds to remove the cross from
its location on federal property. See Consolidated Appro­
priations Act, 2001, Pub. L. 106–554, App. D, §133, 114
Stat. 2763A–230; Department of Defense Appropriations
Act, 2003, Pub. L. 107–248, §8065(b), 116 Stat. 1551.
Thus, beyond merely acquiescing in the continued pres­
ence of a cross on federal property, Congress singled out
that cross for special treatment, and it affirmatively com­
manded that the cross must remain.
Congress also made a more dramatic intervention.
Without the benefit of any committee hearings or floor
debate in either the Senate or the House of Representa­
tives—indeed, without a moment of discussion in any
official forum—Congress passed legislation officially des­
ignating the “five-foot-tall white cross” in the Mojave
Desert “as a national memorial commemorating United
States participation in World War I and honoring the
American veterans of that war.” §8137(a), 115 Stat. 2278.
Thereafter, the cross was no longer just a local artifact; it
acquired a formal national status of the highest order.
Cite as: 559 U. S. ____ (2010) 13
STEVENS, J., dissenting
Once that momentous step was taken, changing the iden­
tity of the owner of the underlying land could no longer
change the public or private character of the cross. The
Government has expressly adopted the cross as its own.5
Even though Congress recognized this cross for its
military associations, the solitary cross conveys an ines­
capably 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 Christian
veterans”). As the District Court observed, it is undis­
puted 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.” Buono I, 212 F. Supp. 2d,
at 1205. We have recognized the significance of the Latin
cross as a sectarian symbol,6 and no participant in this
——————
5 The plurality barely mentions this designation, except to assert that
the designation gave recognition to the historical meaning of the cross.
See ante, at 12. But the plurality does not acknowledge that when the
Ninth Circuit affirmed the 2002 judgment, it concluded that the desig­
nation is one of the factors that would lead a reasonable observer to
perceive government endorsement of religion. See Buono II, 371 F. 3d,
at 550. Nor does the plurality address the effect of that designation on
a reasonable observer’s perception of the cross, regardless of whether
the cross sits on private land. See ante, at 16.
6 See, e.g., Pinette, 515 U. S., at 760 (characterizing Ku Klux Klan­
sponsored cross as religious speech); id., at 776 (O’Connor, J., concur­
ring in part and concurring in judgment) (“[T]he cross is an especially
potent sectarian symbol”); id., at 792 (Souter, J., concurring in part and
concurring in judgment) (“[T]he Latin cross . . . is the principal symbol
of Christianity around the world, and display of the cross alone could
not reasonably be taken to have any secular point”); id., at 798, n. 3(STEVENS, J., dissenting) (“[T]he Latin cross is identifiable as a symbol
of a particular religion, that of Christianity; and, further, as a symbol of
particular denominations within Christianity”); County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S.
573, 661 (1989) (KENNEDY, J., concurring in judgment in part and
dissenting in part) (“[T]he [Establishment] Clause forbids a city to
14 SALAZAR v. BUONO
STEVENS, J., dissenting
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 memo­
rial sectarian.7
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.” Ante, at 13. 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 re­
jected the argument that its dual symbolism as a war
memorial meant that government endorsement of the
cross did not amount to endorsement of religion. See
Buono II, 371 F. 3d, at 549, n. 5. All we are debating at
——————
permit the permanent erection of a large Latin cross on the roof of city
hall . . . because such an obtrusive year-round religious display would
place the government’s weight behind an obvious effort to proselytize
on behalf of a particular religion”).
7 Context is critical to the Establishment Clause inquiry, and not
every use of a religious symbol in a war memorial would indicate
government endorsement of a religious message. See, e.g., Van Orden
v. Perry, 545 U. S. 677, 701 (2005) (BREYER, J., concurring in judgment)
(“[T]o determine the message that the text here conveys, we must
examine how the text is used. And that inquiry requires us to consider
the context of the display”); County of Allegheny, 492 U. S., at 598(“[T]he effect of a crèche display turns on its setting”); Lynch v. Don
nelly, 465 U. S. 668, 694 (1984) (O’Connor, J., concurring) (“Every
government practice must be judged in its unique circumstances to
determine whether it constitutes an endorsement or disapproval of
religion”). But this cross is not merely one part of a more elaborate
monument that, taken as a whole, may be understood to convey a
primarily nonreligious message. Rather, the cross is the only symbol
conveying any message at all.
Cite as: 559 U. S. ____ (2010) 15
STEVENS, J., dissenting
this juncture is whether the shift from public to private
ownership of the land sufficiently distanced the Govern­
ment from the cross; we are no longer debating the mes­
sage the cross conveys to a reasonable observer. In argu­
ing that Congress can legitimately favor the cross because
of its purported double meaning, the plurality implicitly
tries to reopen what is closed.8
The plurality also poses a different objection to consid­
eration of whether the transfer would change a reasonable
observer’s perception of the cross. The plurality suggests
that the “ ‘reasonable observer’ standard” may not “be the
appropriate framework” because “courts considering Es­
tablishment Clause challenges do not,” as a general mat­
ter, “inquire into ‘reasonable observer’ perceptions with
respect to objects on private land.” Ante, at 16. Once
again, the plurality’s approach fails to pay heed to the
posture of this case.
At the risk of stating the obvious, respondent is not
simply challenging a private object on private land. Al­
though “an Establishment Clause violation must be
moored in government action of some sort,” Pinette, 515
U. S., at 779 (O’Connor, J., concurring in part and concur­
——————
8 The plurality’s assertions regarding the meaning of the cross are
therefore beside the point. For the record, however, I cannot agree that
a bare cross such as this conveys a nonsectarian meaning simply
because crosses are often used to commemorate “heroic acts, noble
contributions, and patient striving” and to honor fallen soldiers. Ante,
at 17. The cross is not a universal symbol of sacrifice. It is the symbol
of one particular sacrifice, and that sacrifice carries deeply significant
meaning for those who adhere to the Christian faith. The cross has
sometimes been used, it is true, to represent the sacrifice of an individ­
ual, as when it marks the grave of a fallen soldier or recognizes a state
trooper who perished in the line of duty. Even then, the cross carries a
religious meaning. But the use of the cross in such circumstances is
linked to, and shows respects for, the individual honoree’s faith and
beliefs. I, too, would consider it tragic if the Nation’s fallen veterans
were to be forgotten. See ibid. But there are countless different ways,
consistent with the Constitution, that such an outcome may be averted.
16 SALAZAR v. BUONO
STEVENS, J., dissenting
ring in judgment), respondent’s objection to the transfer
easily meets that test for two reasons. First, he is cur­
rently challenging official legislation, taken in response to
an identified Establishment Clause violation. That legis­
lation would transfer public land to a particular private
party, with the proviso that the transferee must use the
land to fulfill a specific public function or else the land
reverts back to the Government. Second, even once the
transfer is complete, the cross would remain a national
memorial. The cross is therefore not a purely “private”
object in any meaningful sense.
Notwithstanding these facts, the plurality appears to
conclude that the transfer might render the cross purely
private speech. It relies in part on the plurality opinion in
Pinette for its suggestion that the reasonable observer
standard may not be apposite, and Pinette addressed a
privately owned cross displayed in a public forum. The
Pinette plurality would have rejected the idea that “a
neutrally behaving government” can ever endorse “private
religious expression,” id., at 764, even if a reasonable
observer would perceive government endorsement, id., at
768. But the Pinette plurality acknowledged that govern­
ment favoritism of private religious speech is unconstitu­
tional, as when a government “giv[es] sectarian religious
speech preferential access to a forum close to the seat of
government (or anywhere else for that matter).” Id., at
766. And in this case, the Government is not acting neu­
trally: The transfer statute and the government actions
preceding it have all favored the cross.
Furthermore, even assuming (wrongly) that the cross
would be purely private speech after the transfer, and
even assuming (quite implausibly) that the transfer stat­
ute is neutral with respect to the cross, it would still be
appropriate for the District Court to apply the reasonable
observer standard. The majority of the Pinette Court
rejected the per se rule proposed by the plurality. Instead,
Cite as: 559 U. S. ____ (2010) 17
STEVENS, J., dissenting
the relevant standard provides that the Establishment
Clause is violated whenever “the State’s own actions . . . ,
and their relationship to the private speech at issue, actu
ally convey a message of endorsement.” Id., at 777(O’Connor, J., concurring in part and concurring in judg­
ment). Moreover, the Establishment Clause “imposes
affirmative obligations that may require a State, in some
situations, to take steps to avoid being perceived as sup­
porting or endorsing a private religious message.” Ibid. It
is particularly appropriate in this context—when the issue
is whether the transfer cures an already identified Estab­
lishment Clause violation—for the District Court to con­
sider whether the Government, by complying with §8121,
would have taken sufficient steps to avoid being perceived
as endorsing the cross.
As I explained at the outset of this section, the answer
to that inquiry is surely no. The reasonable observer “who
knows all of the pertinent facts and circumstances sur­
rounding the symbol and its placement,” ante, at 17, would
perceive that the Government has endorsed the cross: It
prohibited the use of federal funds to take down the cross,
designated the cross as a national memorial, and engaged
in “herculean efforts to preserve the Latin cross” following
the District Court’s initial injunction, Buono III, 364
F. Supp. 2d, at 1182. Those efforts include a transfer
statute designed to keep the cross in place. Changing the
ownership status of the underlying land in the manner
required by §8121 would not change the fact that the cross
conveys a message of government endorsement of religion.
Purpose in Enacting the Transfer Statute
Even setting aside that the effect of the post-transfer
cross would still be to convey a message of government
endorsement of religion, the District Court was correct to
conclude that §8121 would not cure the Establishment
Clause violation because the very purpose of the transfer
18 SALAZAR v. BUONO
STEVENS, J., dissenting
was to preserve the display of the cross. That evident
purpose maintains government endorsement of the cross.
The plurality does not really contest that this was Con­
gress’ purpose, ante, at 11, so I need not review the evi­
dence in great detail. Suffice it to say that the record
provides ample support. The land-transfer statute author­
izes a conveyance to the particular recipient that has
expressed an intent to preserve the cross. See Brief for
Veterans of Foreign Wars of the United States et al. as
Amici Curiae 4 (transfer recipient “intends to maintain
and preserve the Veterans Memorial”); id., at 7 (identify­
ing Veterans Memorial as the “cross and plaque”). And it
conveys the particular land that has already been desig­
nated “as a national memorial” commemorating the veter­
ans of World War I, §8121(a), 117 Stat. 1100, subject to a
reversionary clause requiring that a memorial “commemo­
rating United States participation in World War I and
honoring the American veterans of that war” be main­
tained, §8121(e). If it does not categorically require the
new owner of the property to display the existing memo­
rial meeting that description (the cross), see §8137, 115
Stat. 2278, the statute most certainly encourages this
result. Indeed, the Government concedes that Congress
sought to “preserve a longstanding war memorial” at the
site, Brief for Petitioners 28 (emphasis added), and the
only memorial that could be “preserved” at Sunrise Rock is
the cross itself.
The plurality insists, however, that even assuming the
purpose of the land transfer was to preserve the display of
the cross, enjoining the transfer was not necessarily ap­
propriate. It contends the District Court failed to give
adequate consideration to “the context in which the [land­
transfer] statute was enacted and the reasons for its pas­
sage,” ante, at 11, and it directs the District Court’s atten­
tion to three factors: the message intended by the private
citizens who first erected the cross, ibid.; the time the
Cite as: 559 U. S. ____ (2010) 19
STEVENS, J., dissenting
cross stood on Sunrise Rock and its historical meaning,
ante, at 11–12; and Congress’ balancing of “opposing inter­
ests” and selection of a “policy of accommodation,” ante, at
13; see also ante, at 17.
The first two of these factors are red herrings. The
District Court, in its enforcement decision, had no occasion
to consider anew either the private message intended by
those who erected the cross or how long the cross had
stood atop Sunrise Rock. Neither of these factors consti­
tuted a novel or changed circumstance since the entry of
the 2002 injunction. Whatever message those who ini­
tially erected the cross intended—and I think we have to
presume it was a Christian one, at least in part, for the
simple reason that those who erected the cross chose to
commemorate American veterans in an explicitly Chris­
tian manner—that historical fact did not change between
2002 and 2005. I grant that the amount of time the cross
had stood on Sunrise Rock did change, from 68 years to 71
years, but no one can seriously maintain that “the histori­
cal meaning that the cross had attained,” ante, at 12, was
materially transformed in that 3-year increment.9
——————
9 I also disagree with the plurality’s factual premise that “the cross
and the cause it commemorated had become entwined in the public
consciousness” in a secular manner, ante, at 11–12. Although some
members of the community knew that the cross had been originally
erected as a war memorial, there is no support in the record for the idea
that members of the public “gathered regularly at Sunrise Rock to pay
their respects,” ibid., to the fallen of World War I or any other veterans.
The study conducted by a National Park Service historian indicates
that a group of veterans gathered at the cross as early as 1935 for
Easter sunrise services. Memorandum from Mark Luellen to Superin­
tendent, Mojave National Preserve (Jan. 31, 2000), Decl. of Peter J.
Eliasberg in Buono v. Norton, No. EDCV 01–216–RT (CD Cal., Mar. 13,
2002), p. 20 (Exh. 7). But there is no evidence that gatherings were
ever held for Armistice Day or Veterans Day. The study further reveals
that a local club organized social events for the community at the cross
from 1950 to 1975 and that after a local veteran passed away in 1984,
the “memory and associations of the white cross . . . as a war memorial”
20 SALAZAR v. BUONO
STEVENS, J., dissenting
This brings us to the final factor identified by the plural­
ity: Congress’ “policy of accommodation” for the cross.10 Of
course, the District Court did consider Congress’ “policy”
in the sense that it considered the result Congress was
trying to achieve with respect to the cross, i.e., to keep it in
place. See Buono III, 364 F. Supp. 2d, at 1182 (“[T]he
proposed transfer of the subject property can only be
viewed as an attempt to keep the Latin cross atop Sunrise
Rock without actually curing the continuing Establish­
ment Clause violation”). But I understand the plurality to
be faulting the District Court for failing to inquire into a
deeper level of motivation: If the purpose of the transfer
was to keep the cross in place, what was the purpose of
keeping the cross in place?
I do not see why it was incumbent upon the District
Court to examine this second-order purpose when deter­
mining whether the transfer violated the 2002 injunction.
As discussed in Part II, supra, the injunction barred the
Government from permitting the display of the cross,
which fairly encompasses any act providing an opportu­
nity for the cross’ display. It was entirely appropriate for
the District Court to characterize a transfer with the
purpose of preserving the cross as an attempt to evade
that injunction, and to find that the Government’s purpose
to preserve the cross maintains government endorsement
of the cross.
——————
faded but locals were “inspired . . . to reinstate the Easter sunrise
services” at the cross. Ibid.
10 Although the plurality uses the term “accommodation,” I do not
read its opinion to suggest that Congress’ policy vis-à-vis the cross has
anything to do with accommodating any individual’s religious practice.
Cf. County of Allegheny, 492 U. S., at 601, n. 51 (“Nor can the display of
the crèche be justified as an ‘accommodation’ of religion. . . . To be sure,
prohibiting the display . . . deprives Christians of the satisfaction of
seeing the government adopt their religious message as their own, but
this kind of government affiliation with particular religious messages is
precisely what the Establishment Clause precludes”).
Cite as: 559 U. S. ____ (2010) 21
STEVENS, J., dissenting
The plurality would have the District Court revise its
entire analysis of whether the transfer would end govern­
ment endorsement, in light of the plurality’s view of the
land-transfer statute’s putative second-order purpose.
That analysis ignores the procedural posture of the case.
If the question before the Court were whether §8121 itself
violated the Establishment Clause, then this argument
might have merit. 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 en­
dorsement of—indeed, favoritism toward—the cross,
regardless of why Congress chose to intervene as it did.
In any event, Congress’ second-order purpose does little
for the plurality’s position. Without relying on any legisla­
tive 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,” ante, at 12, and it suggests that this decision
was an acceptable method of “balanc[ing] opposing inter­
ests” because the cross “has complex meaning beyond the
expression of religious views,” ante, at 13. As I have al­
ready explained, the meaning of the cross (complex or
otherwise) is no longer before us, and the plurality’s reli­
ance on a “congressional statement of policy,” ibid., 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 di­
vorced from the methodology prescribed by our doctrine.11
——————
11 JUSTICE ALITO similarly affords great weight to Congress’ purported
interest in “avoiding the disturbing symbolism associated with the
destruction of the historic monument.” Ante, at 5 (opinion concurring
in part and concurring in judgment). But we surely all can agree that
once the government has violated the Establishment Clause, as has
22 SALAZAR v. BUONO
STEVENS, J., dissenting
Our precedent provides that we evaluate purpose based
upon what the objective indicia of intent would reveal to a
reasonable observer. See McCreary County v. American
Civil Liberties Union of Ky., 545 U. S. 844, 862 (2005)
(“The eyes that look to purpose belong to an objective
observer, one who takes account of the traditional external
signs that show up in the text, legislative history, and
implementation of the statute, or comparable official act”
(internal quotation marks omitted)). “[R]easonable ob­
servers have reasonable memories, and our precedents
sensibly forbid an observer ‘to turn a blind eye to the
context in which [the] policy arose.’ ” Id., at 866 (quoting
Santa Fe Independent School Dist. v. Doe, 530 U. S. 290,
315 (2000)). The plurality nowhere engages with how a
reasonable observer would view Congress’ “policy of ac­
commodation” for this cross. Instead, the plurality insists
that deference is owed because of “Congress’s prerogative
to balance opposing interests and its institutional compe­
tence to do so.” Ante, at 13.
The proper remedy for an Establishment Clause viola­
tion is a legal judgment, which is not the sort of issue for
which Congress “ ‘has both wisdom and experience . . . that
——————
been adjudged in this case and is now beyond question, a plaintiff must
be afforded a complete remedy. That remedy may sometimes require
removing a religious symbol, and regrettably some number of people
may perceive the remedy as evidence that the government “is bent on
eliminating from all public places and symbols any trace of our coun­
try’s religious heritage,” ante, at 4. But it does not follow that the
government can decline to cure an Establishment Clause violation in
order to avoid offense. It may be the case that taking down the symbol
is not the only remedy. The proper remedy, like the determination of
the violation itself, is necessarily context specific, and even if it involves
moving the cross, it need not involve the “demolition” or “destruction” of
the cross, see ante, at 4, 5. Regardless, in this case the only question
before us is whether this particular transfer provided a complete
remedy. We have no way of knowing whether Congress’ motivation
was to minimize offense, but in any event that interest does not amelio­
rate the remedial ineffectiveness of §8121.
Cite as: 559 U. S. ____ (2010) 23
STEVENS, J., dissenting
is far superior to ours.’ ” Citizens United v. FEC, 558 U. S.
___, ___ (2010) (STEVENS, J., dissenting) (slip op., at 71)
(quoting Colorado Republican Federal Campaign Comm.
v. FEC, 518 U. S. 604, 650 (1996) (STEVENS, J., dissent­
ing)). Moreover, the inference that Congress has exercised
its institutional competence—or even its considered judg­
ment—is significantly weaker in a case such as this, when
the legislative action was “buried in a defense appropria­
tions bill,” Buono III, 364 F. Supp. 2d, at 1181, and, so far
as the record shows, undertaken without any deliberation
whatsoever. I am not dismissive of Congress, see ante, at
7 (opinion of ALITO, J.), but §8121 presents no factual
findings, reasoning, or long history of “ ‘careful legislative
adjustment,’ ” Citizens United, 558 U. S., at ___ (STEVENS,
J., dissenting) (slip op., at 71) (quoting FEC v. Beaumont,
539 U. S. 146, 162, n. 9 (2003)), to which I could possibly
defer. Congress did not devote “years of careful study” to
§8121, Citizens United, 558 U. S., at ___ (STEVENS, J.,
dissenting) (slip op., at 73), nor did it develop a record of
any kind, much less an exhaustive one, see id., at ___ (slip
op., at 20) (noting the legislative record for the Bipartisan
Campaign Reform Act of 2002 spanned 100,000 pages).
The concurrence’s attempt to draw an equivalence be­
tween a provision tucked silently into an appropriations
bill and a major statute debated and developed over many
years is, to say the least, not persuasive. All legislative
acts are not fungible.
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 secu­
lar purpose for the government action is apparent,”
McCreary County, 545 U. S., at 865, n. 13 (emphasis
added). Nor can the Government pursue a secular aim
through religious means. See Van Orden, 545 U. S., at
715 (STEVENS, J., dissenting) (“Though the State of Texas
24 SALAZAR v. BUONO
STEVENS, J., dissenting
may genuinely wish to combat juvenile delinquency, and
may rightly want to honor the Eagles for their efforts, it
cannot effectuate these admirable purposes through an
explicitly religious medium”). It is odd that the plurality
ignores all of these well-settled principles in exalting this
particular legislative determination.
A reasonable observer, considering the nature of this
symbol, 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 be­
cause 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 cross
was settled by the 2002 judgment; the only question before
us is whether the Government has sufficiently distanced
itself 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 Gov­
ernment from the cross. Indeed, §8121 evidenced concern
for whether the cross would be displayed. The District
Court was therefore correct to find that the transfer would
——————
12 I have not “jump[ed] to the conclusion that Congress’ aim in enact­
ing the land transfer law was to embrace the religious message of the
cross.” Ante, at 7 (opinion of ALITO, J.). I think a reasonable observer
could come to that conclusion, but my point is that so long as we agree
that Congress’ aim was to preserve the cross (which JUSTICE ALITO does
not dispute), Congress’ reason for preserving the cross does not matter.
But if we were debating whether Congress had a religious purpose in
passing the transfer statute, I would contest the relevance of the vote
count to that inquiry, see ante, at 6, and particularly so in this case.
One cannot infer much of anything about the land-transfer provision
from the fact that an appropriations bill passed by an overwhelming
majority.
Cite as: 559 U. S. ____ (2010) 25
STEVENS, J., dissenting
not end government endorsement of religion.
IV
In sum, I conclude that the transfer ordered by §8121
will not end the pre-existing government endorsement of
the cross, and to the contrary may accentuate the problem
in some respects. Because the transfer would perpetuate
the Establishment Clause violation at issue in the 2002
injunction, I further conclude that enjoining the transfer
was necessary to secure relief. Given the transfer stat­
ute’s fundamental inadequacy as a remedy, there was—
and is—no need for the District Court to consider “less
drastic relief than complete invalidation of the . . . stat­
ute.” Ante, at 18. Allowing the transfer to go forward
would interfere with the District Court’s authority to
enforce its judgment and deprive the District Court of the
ability to ensure a complete remedy. Nor could allowing
the transfer to go forward be made a complete remedy
with add-on measures, such as signs or fences indicating
the ownership of the land. Such measures would not
completely end the government endorsement of this cross,
as the land would have been transferred in a manner
favoring the cross and the cross would remain designated
as a national memorial. Enjoining compliance with §8121
was therefore a proper exercise of the District Court’s
authority to enforce the 2002 judgment.
* * *
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 Na­
tion’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 reli­
gious ways. Each of these impressive structures pays
26 SALAZAR v. BUONO
STEVENS, J., dissenting
equal respect to all members of the Armed Forces who
perished in the service of our Country in those conflicts.
In this case, by contrast, a sectarian symbol is the memo­
rial. And because Congress has established no other
national monument to the veterans of the Great War, this
solitary cross in the middle of the desert is the national
World War I memorial. The sequence of legislative deci­
sions made to designate and preserve a solitary Latin
cross at an isolated location in the desert as a memorial
for those who fought and died in World War I not only
failed to cure the Establishment Clause violation but also,
in my view, resulted in a dramatically inadequate and
inappropriate tribute.
I believe that most judges would find it to be a clear
Establishment Clause violation if Congress had simply
directed that a solitary Latin cross be erected on the Mall
in the Nation’s Capital to serve as a World War I Memo­
rial. Congress did not erect this cross, but it commanded
that the cross remain in place, and it gave the cross the
imprimatur of Government. Transferring the land pursu­
ant to §8121 would perpetuate rather than cure that
unambiguous endorsement of a sectarian message.
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 responsi­
bility to avoid endorsement of a particular religious view,
should control wherever national memorials speak on
behalf of our entire country.
I respectfully dissent.
Cite as: 559 U. S. ____ (2010) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–472
_________________
KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS v. FRANK BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 28, 2010]
JUSTICE BREYER, dissenting.
The District Court in this case entered a permanent
injunction forbidding the Government to “permi[t] the
display of the Latin cross in the area of Sunrise Rock in
the Mojave National Preserve.” App. 39. Subsequently,
Government authorities covered the cross with a plywood
box so that it could not be seen. Congress then enacted a
statute directing the Secretary of the Interior to convey to
a private entity approximately one acre of land upon
which the cross stood, presumably so that the cross could
be displayed uncovered. The plaintiff, returning to the
District Court, asked that court to “ ‘hold that the transfer
violates the . . . injunction.’ ” Buono v. Norton, 364
F. Supp. 2d 1175, 1177 (CD Cal. 2005) (quoting plaintiff’s
motion). The court held that it did. Id., at 1182. And the
question before us is whether the law permits the District
Court so to interpret its injunction.
To answer this question we need not address any sig
nificant issue of Establishment Clause law. Because the
Government has already lost the case, taken an appeal,
and lost the appeal, we must take as a given the lower
court’s resolution of the Establishment Clause question
before the land transfer. That is to say, as the plurality
points out, ante, at 9, we must here assume that the origi
nal display of the cross violated the Constitution because
2 SALAZAR v. BUONO
BREYER, J., dissenting
“the presence of the cross on federal land conveys a mes
sage” to a “reasonable observer” of governmental “en
dorsement of religion.” Buono v. Norton, 212 F. Supp. 2d
1202, 1216–1217 (CD Cal. 2002). See Travelers Indemnity
Co. v. Bailey, 557 U. S. ___, ___ (2009) (slip op., at 14)
(once orders become final on direct review, they are res
judicata to the parties). For the same reason, we must
here assume that the plaintiff originally had standing to
bring the lawsuit. Ante, at 7; see also ante, at 1 (SCALIA,
J., concurring in judgment); Travelers, supra, at ___ (slip
op., at 14) (orders are no less preclusive when the collat
eral attack is jurisdictional). And, as the plurality also
points out, the plaintiff consequently has standing now to
seek enforcement of the injunction. Ante, at 8–9; see also
Allen v. Wright, 468 U. S. 737, 763 (1984).
Moreover, we are not faced with the question whether
changed circumstances require modification of the injunc
tion. The Government did not ask the District Court to
modify it. In fact, the Government did not ask the District
Court for any relief at all. Rather, it was the plaintiff who
asked the District Court either (1) to “ ‘hold that the [land]
transfer violates the current injunction,’ ” or (2) to “ ‘modify
that injunction to prohibit the land transfer because it
violates the Establishment Clause.’ ” 364 F. Supp. 2d, at
1177 (quoting plaintiff’s motion). The District Court did
the former, i.e., it interpreted the injunction as prohibiting
the Government from transferring the land for purposes of
displaying the cross. And having granted the plaintiff’s
request to enforce the injunction, it dismissed the plain
tiff’s alternative request to modify the injunction as moot.
Thus, as I said at the outset, the only question before us
is whether the law permits the District Court to hold that
the land transfer (presumably along with the subsequent
public display of the cross) falls within the scope of its
original injunctive order, an order that says the Govern
ment must not “permi[t] the display of the Latin cross in
Cite as: 559 U. S. ____ (2010) 3
BREYER, J., dissenting
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.
The legal principles that answer the question presented
are found not in the Constitution but in cases that concern
the law of injunctions. First, the law of injunctions grants
a district court considerable leeway to interpret the mean
ing and application of its own injunctive order. Members
of this Court have written that the “construction given to”
an “injunction by the issuing judge . . . is entitled to great
weight.” Madsen v. Women’s Health Center, Inc., 512 U. S.
753, 795 (1994) (SCALIA, J., concurring in judgment in part
and dissenting in part). And the Courts of Appeals have
consistently held that district courts have considerable
discretion in interpreting and applying their own injunc
tive decrees. See, e.g., JTH Tax, Inc. v. H & R Block East
ern Tax Servs., Inc., 359 F. 3d 699, 705 (CA4 2004); Ala
bama Nursing Home Assn v. Harris, 617 F. 2d 385, 388
(CA5 1980). This principle is longstanding and well estab
lished, as reflected in a prominent treatise writer’s sum
mary of the case law: “The court granting the injunction is
necessarily invested with large discretion in enforcing
obedience to its mandate, and . . . courts of appellate
powers are exceedingly averse to interfering with the
exercise of such judgment and discretion.” 2 J. High, Law
of Injunctions §1458, pp. 1467–1468 (4th ed. 1905).
Second, a court should construe the scope of an injunc
tion in light of its purpose and history, in other words,
“what the decree was really designed to accomplish.”
Mayor of Vicksburg v. Henson, 231 U. S. 259, 273 (1913).
Courts have long looked to “the objects for which the
[injunctive] relief was granted, as well as the circum
stances attending it,” in deciding whether an enjoined
party has complied with an injunction. 2 High, supra,
§1446, at 1455, and n. 68 (citing cases); see also John B.
Stetson Co. v. Stephen L. Stetson Co., 128 F. 2d 981, 983
4 SALAZAR v. BUONO
BREYER, J., dissenting
(CA2 1942). And they have long refused to “permit defen
dants to evade responsibility for violating an injunction,
by doing through subterfuge a thing which is not in terms
a violation, yet produces the same effect by accomplishing
substantially that which they were enjoined from doing.”
Stodder v. Rosen Talking Mach. Co., 247 Mass. 60, 68, 141
N. E. 569, 571 (1923).
These two principles adequately support the District
Court’s interpretation and application of the injunctive
language at issue here. As an initial matter, the plain text
of the injunction is reasonably read to prohibit the trans
fer. Right now, the cross is covered with a plywood box;
after the transfer, the box will be removed and the cross
will be displayed. The transfer thus “permits” the public
“display” of the cross. Indeed, that is the statute’s
objective.
Consideration of the injunction’s purpose points in the
same direction. The injunction rested upon the District
Court’s determination that the display of the cross “con
veys a message of endorsement of religion” to “a reason
able observer” in violation of the Establishment Clause.
212 F. Supp. 2d, at 1216–1217. (As I have said, for pre
sent purposes we must assume that this is so.) The pur
pose of the injunction is to prevent the conveyance of such
a message to the reasonable observer.
With that purpose in mind, consider the following facts
that confronted the District Court when the plaintiff asked
it to enforce the decree:
• The Government had designated the “white cross
. . . as well as a limited amount of adjoining [land]”
as a national memorial. Pub. L. 107–117, §8137(a),
115 Stat. 2278–2279.
• The new statute directed the transfer of the “prop
erty . . . designated . . . as a national memorial” to a
private entity with an interest in maintaining the
Cite as: 559 U. S. ____ (2010) 5
BREYER, J., dissenting
cross in its current location, in exchange for a par
cel of land located elsewhere in the Preserve owned
by private individuals who have taken a similar in
terest in the cross. Pub. L. 108–87, §§8121(a) and
(b), 117 Stat. 1100.
• The transfer was made “subject to the condition
that the recipient maintain the conveyed property
as a memorial,” and the property reverts to the
United States if the Secretary determines that the
recipient has failed to do so. §8121(e), id., at 1100.
• After the transfer, the cross would sit on 1 acre of
privately owned land in a 1.6 million acre national
preserve, over 90% of which is federally owned.
212 F. Supp. 2d, at 1205.
• Congress had previously prevented the use of fed
eral funds to remove the cross from its present lo
cation. Pub. L. 107–248, §8065(b), 116 Stat. 1551;
Pub. L. 106–554, §133, 114 Stat. 2763A–230.
The District Court considered the facts before it through
the lens of the injunction’s original purpose. See 364
F. Supp. 2d, at 1180 (explaining that the “[G]overnment’s
continuing control over the Latin cross” and the involve
ment of private parties who “desir[e] its continued pres
ence in the Preserve,” “demonstrat[e]” that the transfer
would not end “the [G]overnment’s apparent endorsement
of a particular religion”); id., at 1182 (considering the
historical context of the transfer statute); see also Buono
v. Kempthorne, 527 F. 3d 758, 783 (CA9 2008) (“carving
out a tiny parcel of property in the midst of this vast Pre
serve . . . will do nothing to minimize the impermissible
governmental endorsement” perceived by the reasonable
observer). And it concluded that the land transfer would
frustrate that purpose. See 364 F. Supp. 2d, at 1182 (the
transfer would “keep the Latin cross atop Sunrise Rock
without actually curing the continuing Establishment
6 SALAZAR v. BUONO
BREYER, J., dissenting
Clause violation”); see also 527 F. 3d, at 783 (finding that
“[n]othing in the present posture of the case alters . . .
earlier conclusions” regarding what a reasonable observer
would perceive). In my view, this is a reasonable
conclusion.
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 cir
cumstances 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 discre
tion. 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. Cf. Frew v. Hawkins, 540 U. S. 431, 442 (2004) (“If
the [enjoined defendant] establishes reason to modify the
decree, the court should make the necessary changes;
where it has not done so, however, the decree should be
enforced according to its terms”).
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 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.
With respect, I dissent.