The Supreme Court Faces the Question of Who Can Sue to Challenge a Religious Display
	By VIKRAM DAVID AMAR
	Friday, October 9, 2009

In this column, I preview and analyze a case the Supreme Court heard this week -- the first week of the new Term -- that raises, yet again, numerous vexing issues implicated by permanent religious displays that are placed on public property.  The dispute -- Salazar v. Buono -- will give the Justices a chance to explain which kinds of objectors have a right to sue to challenge religious displays, and to discuss the circumstances under which the transfer of property on which the display exists from public to private hands solves any constitutional problems.

The Facts of the Case

In 1934, the Veterans of Foreign Wars (VFW) erected in a remote desert area in Southeastern California a memorial, in the form of a wooden cross set atop an outcropping known as Sunrise Rock. Private parties have replaced the cross several times, most recently in 1998. A plaque accompanied the original cross, identifying it as a war memorial, but there is no longer a plaque at the site. The current cross is between five and eight feet high and is constructed of four-inch white metal pipes.

Sunrise Rock and the surrounding lands are currently under the authority of the National Park Service ("the Park Service"), and are part of the Mojave National Preserve ("the Preserve"), which encompasses approximately 1.6 million acres of land in the Mojave Desert. Slightly more than 90 percent of that land is federally-owned.

Although Easter sunrise services have been held at the cross for more than 70 years, the cross has been deemed to have no historic significance and there are no other displays (religious or otherwise) permitted in the vicinity of the cross; in 1999, the Park Service denied a request to erect a Buddhist shrine near the cross and in fact indicated its intention to remove the cross.

In the late summer of 2000, Frank Buono -- a Roman Catholic and a former Park Service official who now lives in Oregon, but who once worked at the Preserve and returns periodically for visits -- wrote to the Park Service Director expressing constitutional concern about the presence of the cross in the Preserve. But shortly thereafter, Congress prohibited the Park Service from spending federal funds to remove the cross.

Buono's Lawsuit, and the Decisions and Legislation that Followed It

In March 2001, Buono filed a lawsuit challenging the constitutionality of the government's display of the cross. Buono does not object to a cross being on public land per se, but he does assert that he is offended by the display of a cross on government property that "is not open to groups and individuals to erect other freestanding, permanent displays," and claims that he would avoid the cross on his future visits to the Preserve.

In July 2002, a federal district court held that Buono had standing to sue because he was "subjected to an unwelcome religious display," namely the cross. It also concluded that the presence of the cross on federal land in the Preserve violates the Establishment Clause of the First Amendment because its "primary effect" was to advance religion. Accordingly, the court permanently enjoined the display of the cross. In October 2002, Congress again banned the use of federal funds to remove the cross.

On appeal, the U.S. Court of Appeals for the Ninth Circuit stayed the district court's injunction "to the extent that the order required the immediate removal or dismantling of the cross." The government subsequently covered the cross with a large plywood box, and the cross remains so covered.

While the government's appeal of the district court's decision was still pending, Congress enacted yet more legislation ordering the Secretary of Defense to convey to the VFW, without open bidding or any other competitive process, the Sunrise Rock war memorial property in exchange for a five-acre parcel of land elsewhere in the Preserve that is owned by the private parties who had erected the current cross. Congress further provided that if the Secretary determines that the conveyed property is no longer being maintained as a war memorial, then the property shall revert to the ownership of the United States.

In June 2004, a three-judge panel of the Court of Appeals affirmed the district court's judgment. The panel held that the case had not been rendered moot by the 2004 Act, because "the land transfer could take as long as two years to complete," and even after the land transfer, "the land may revert to the federal government." The court expressed no view as to whether a transfer completed under the 2004 Act would pass constitutional muster, leaving that question for another day.

The court then held that Buono had standing to challenge the cross, rejecting the government's argument that he lacks standing to maintain this action because his only asserted injury is an ideological, rather than a religious, objection concerning other persons' rights to erect other symbols.

On the merits, the Court of Appeals held that the case was "squarely controlled" by a prior decision holding that a 51-foot concrete Latin cross with neon inset tubing, displayed in a city park and first identified as a war memorial more than 30 years after it was erected, violated the Establishment Clause.

After some more procedural wrangling in the district court, a different panel of the Ninth Circuit in 2007 again ruled for Buono, holding that a sale of real property is not necessarily an effective way for a public body to end its inappropriate endorsement of religion. The Government then filed a petition for certiorari, which the U.S. Supreme Court granted last spring.

The Government's Two Arguments, and Buono's Responses

The government contends that because Buono has no objection to religious symbols or imagery on private property – rather, he objects to the display of a religious symbol on public property -- he lacks standing. According to the government, the transfer of the land on which the cross sits to a private party eliminates any constitutional injury Buono may have incurred, because now, the religious display is no longer attributable to the government.

The government further attacks Buono's constitutional standing by asserting that standing analysis must examine why the display is alleged to be unwelcome; the government highlights the fact that the cross on Sunrise Rock doesn't violate Buono's own Roman Catholic religious beliefs. According to the government, because Buono's asserted injury is not that he has been subjected to religiously offensive exercises, indirect coercion, or exclusion from the political community, but rather that he must observe government conduct (the use of land for a particular memorial) with which he disagrees, his alleged injury is constitutionally insufficient.

Moreover, the government contends, prudential considerations counsel against hearing this suit. Buono is an inappropriate plaintiff because he does not seek to erect a religious display himself, but instead seeks only to assert the rights of others to erect displays on public property. He thus objects to displaying the cross on public property only because that property is not an open forum on which other people – not including himself -- may erect other religious displays.

Buono, in response, claims there is no logic to the government's assumption that because he takes no offense to a religious symbol on private property, he lacks a cognizable objection to the placement of a sectarian symbol on government-owned property. Devout persons of all faiths, he contends, may welcome diversity of private religious exercise and expression, while also objecting to governmental favoritism towards a particular religious sect – and even toward one's own religion. The Court's precedents are rooted in the history of the adoption of the Establishment Clause, which was intended not only to protect members of minority faiths from government action contrary to their religious beliefs, but also to protect members of majority faiths from government action that supports their religious beliefs – as such intertwinement of church and state may tend to degrade their sect, not benefit it.

On the merits, the Government argues that Congress's proposed transfer of Sunrise Rock cures the previously-adjudicated constitutional violation, because the transfer will "eliminate so far as possible" the effects of any violation and bar it from recurring.

Buono, of course, argues that even under this standard, the 2004 Act is an insufficient remedy because the government continues to impermissibly endorse the Christian cross in a number of independent ways.

Most importantly, the cross will, by Act of Congress, remain designated a national memorial even if the land transfer to the VFW were permitted, thus perpetuating sectarian government favoritism of a sectarian religious symbol. As one of a small, select group of displays that Congress has designated as national memorials, the cross would necessarily reflect continued and impermissible government association with the preeminent symbol of Christianity. Further, the fact that Congress employed an unusual method to transfer the land – a special provision in an appropriations bill – as opposed to employing federal land transfer statutes, implicates the concern for sectarian favoritism, and undermines the remedial legitimacy of the 2004 Act. These aspects of Congress' actions, argues Buono, violate the clearest command of the Establishment Clause that one religion cannot be officially preferred over another.

Relatedly, Buono points out, the government maintains an important ownership interest in and continued supervisory duties over the land on which the cross is located by virtue of the statute's reversionary clause, and federal control over the larger area.

In short, Buono argues that if the principal effect of displaying a Christian cross on government property is impermissibly to advance a sectarian religious message, then a series of government acts that have the purpose and effect of ensuring that the same sectarian display remains standing in the same location, with ongoing government involvement and endorsement, constitutes an insufficient remedy for the adjudicated violation. The government is effectively "contracting out" its establishment of religion, by encouraging the VFW to exhibit what the government could not itself display.

The Questions the Court Is Likely to Answer – and Reserve -- In Resolving this Case

The Supreme Court is unlikely, in this case, to answer the question of whether a Latin cross displayed on public property invariably or even presumptively violates the Establishment Clause. However, it may well help clarify the injury requirement for having standing to challenge the display of religious symbols on public land, and it may shed light on the question of when a transfer of land cures an endorsement problem.

The oral argument questions (which can sometimes be misleading as to the Court's intentions) suggest a closely-divided Court, with Justice Anthony Kennedy perhapsoccupying his characteristic middle position. Although it is hard to know how the case will come out, I hope at the least that standing doctrine -- which is already a hash -- is not further muddied.

Because the Establishment Clause was designed in part to protect religion from unwanted assistance (and interference) by government, the fact that Buono is a Catholic and does not find the cross an objectionable symbol in the abstract should not deny him standing. His desire that his own religion not be singled out for "assistance" by government should suffice to make him an appropriate plaintiff. But the Court seems disclined to tie standing to whether there is a cause of action on the merits – that is, to link standing to the question of what the provision of the Constitution being sued under was designed to accomplish -- even though many analysts have urged just such an approach.

On the merits, if the Court finds that the land transfer does cure any constitutional problem, it will at the very least have to explain how its decision is not overly formalistic and how it takes account of how people who visit the area are likely to interpret things. Analogously, in the 1985 case of Wallace v. Jaffree, the Court invalidated Alabama's "moment-of-silence-in-public-schools" statute in part because many observers plausibly understood the statute to be a substitute for the state-sponsored prayer statutes that had been invalidated by the federal courts in the preceding years. If the moment-of-silence law was perceived by the Court to be an impermissible circumvention of constitutional principle in Jaffree, then at least the Court will have to explain why the transfer of land in the Buono case should not be understood similarly.

But the makeup of the Court has changed much in the last two decades; formalities may matter more than appearances under modern Establishment Clause doctrine.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.