559 U.S. 700 | SCOTUS | 2010
Lead Opinion
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
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. Department 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 approximately 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, 1228-1280 (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 Foreign 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
The cross, as built by Sandoz, consists of 4-inch diameter 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 visible, however, from Cima Road, a narrow stretch of blacktop 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 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
“A government religious practice or symbol will survive 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. Kurtzman, 403 U. S. 602, 612-613 (1971)).
The court expressly declined to consider whether the 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 governmental 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 Circuit stayed the 2002 injunction to the extent that it required 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 affirmed, both as to standing and on the merits of Buono’s Establishment Clause challenge. Buono v. Norton, 371 F. 3d
C
During the relevant proceedings, Congress enacted certain statutes related to the cross:
(1) Before Buono I was filed, Congress passed an appropriations 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 participation in World War I and honoring the American veterans 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
The Court of Appeals in Buono II did not address the 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 “expressed] no view as to whether a transfer completed under [the statute] would pass constitutional muster.” 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 described 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 concluded that the transfer was an attempt by the Government to keep the cross atop Sunrise Rock and so was invalid. The court granted Buono’s motion to enforce the 2002 injunction; denied as
The Court of Appeals again affirmed, largely following the reasoning of the District Court. Buono v. Kempthome, 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 certiorari, 555 U. S. 1169 (2009).
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 standing, a plaintiff must have “alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Horne v. Flores, 557 U. S. 433, 445 (2009) (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 standing, that argument is not available to the Government at this stage of the litigation. When Buono moved the District 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 Government’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
Of course, even though the Court may not reconsider whether Buono had standing to seek the 2002 injunction, 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 acquires a “judicially cognizable” interest in ensuring compliance 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 prohibited 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 addressed 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
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.
Ill
The procedural history of this litigation must be considered to identify the issues now subject to review. The District Court granted the 2002 injunction after concluding 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. 137, 152 (2009) (internal quotation marks omitted). The Govern
The question now before the Court is whether the District Court properly enjoined the Government from implementing the land-transfer statute. The District Court did not consider whether the statute, in isolation, would have violated the Establishment Clause, and it did not forbid the land transfer as an independent constitutional violation. 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 authority, 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 consequences in employing the extraordinary remedy of injunction”); 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 injunction 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
Here, the District Court did not engage in the appropriate inquiry. The land-transfer statute was a substantial change in circumstances bearing on the propriety of the requested relief. The court, however, did not acknowledge the statute’s significance. It examined the events that led to the statute’s enactment and found an intent to prevent removal of the cross. Deeming this intent illegitimate, the court concluded that nothing of moment had changed. This was error. Even assuming that the land-transfer statute was an attempt to prevent removal of the cross, it does not follow that an injunction against its implementation was appropriate.
By dismissing Congress’ 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 commemorate American servicemen who had died in World War I. Although certainly a Christian symbol, the cross was not em-placed on Sunrise Rock to promote a Christian message. Cf. 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 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 Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers. See Brief for VFW et al. as Amici Curiae 15 (noting that the plaque accompanying the cross “was decorated with VFW decals”).
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
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. Congress’ prerogative to balance opposing interests and its institutional competence to do so provide one of the principal 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 Government 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 embodies Congress’ legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views. That judgment should not have been dismissed as an evasion, for the statute brought about a change of law and a congressional statement of policy applicable to the case.
Buono maintains that any governmental interest in keeping the cross up must cede to the constitutional concerns on which the 2002 injunction was based. He argues that the land transfer would be “an incomplete remedy” to the consti
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 authority 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 federal land conveyed an impression of governmental endorsement 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 Appeals affirmed the injunction on the same grounds, similarly 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 discussion should not be read to suggest this Court’s agreement with that judgment, some aspects of which may be questionable. The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance,
Even assuming the propriety of the original relief, however, the question before the District Court in Buono III was whether to invalidate the land transfer. Given the sole reliance on perception as a basis for the 2002 injunction, one would expeet 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”).
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 Government 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 continued 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 inquire 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 observer” test); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S.
The District Court did not attempt to reassess the findings in Buono I in light of the policy of accommodation that Congress had embraced. Rather, the District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.
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. Morrison, 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 effect unless no legal alternative exists. Even if, contrary to the congres
Noting the possibility of specific remedies, however, is not an indication of agreement about the continued necessity for injunctive relief. The land-transfer statute’s bearing on this dispute must first be determined. To date, this Court’s jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules. In light of the finding of unconstitutionality in Buono I, and the highly fact-specific nature of the inquiry, it is best left to the District Court to undertake the analysis in the first instance. On remand, if Buono continues to challenge implementation of the statute, the District Court should conduct a proper inquiry as described above.
* * *
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
It is so ordered.
Concurrence Opinion
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).
Concurrence Opinion
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 statute 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 problem, 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.
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.
The Sunrise Rock monument was located on land belonging 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,
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.
Those humans who made the trip to see the monument appear to have viewed it as conveying at least two significantly different messages. See Pleasant Grove City v. Summum, 555 U. S. 460, 474 (2009) (“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, Buono v. Norton, 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 memories of the Great War, the symbol that was selected, a plain unadorned white cross, no doubt evoked the unforgettable 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 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 re
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 removal would have been viewed by many as a sign of disrespect 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 country’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.
Congress chose an alternative approach that was designed 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.”
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 hypothetical reasonable observer who is deemed to be aware of the history and all other pertinent facts relating to a challenged display. See ante, at 720-721 (plurality opinion). 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 monument 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 construction of an official World War I memorial on the National Mall. Cf. post, at 759 (Stevens, J., dissenting). Rather, a well-informed observer would 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, I reject Justice Stevens’ suggestion that the enactment of the land-transfer law was motivated by an illicit purpose. Post, at 757. I would not be “so dismissive of Congress.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 460 (2010) (Stevens, J., concurring in part and dissenting in part). Congress has shown notable solicitude for the rights of religious minorities. See, e. g., Religious Freedom Restoration Act of 1993, 42 U. S. C. § 2000bb et seq.;
For these reasons, I would reverse the decision below and remand with instructions to vacate the order prohibiting the implementation of the land-transfer statute.
See Memorandum from Mark Luellen, Historian, Dept. of Interior, to Superintendent, Mojave National Preserve (Jan. 31,2000) (Luellen Memo), Ded. of Charles R. Shoekey in Buono v. Norton, No. EDCV01-216-RT (SGLx) (CD Cal., Mar. 13, 2002) (Exh. 17); Brief for VFW et al. as Amici
See Luellen Memo; VFW Brief 15-16.
id, at 15.
See Tr. of Oral Arg. 55; VFW Brief 7,16; see also Ausmus 116.
See VFW Brief 7,16.
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).
See Taylor Grazing Act, 48 Stat. 1269, as amended, 43 U. S. C. § 315 et 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 Preserve, ch. 2 (Mar. 2003) (describing mining and grazing in Mojave Preserve), online at http://ww.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).
See Dept. of Interior, National Park Service, Mojave National Preserve, Operating Hours & Seasons, http://www.nps.gov/moja/planyourvisit/ hours.htm; D. Casebier, Mojave Road Guide: An Adventure Through Time 114 (1999); Buono v. Norton, 371 P. 3d 543, 549 (CA9 2004).
See D. Holt, American Military Cemeteries 473, 474 (1992); see also American Battle Monuments Commission, http://vmw.abmc.gov/cemeteries/ cemeteries.php (containing photographs of the two types of markers). This policy presumably reflected the religious 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 Dept. of Veterans Affairs, Available Emblems of Belief for Placement on Government Headstones and Markers, http://www.cem.va.gov/hm/hmemb.asp.
See J. Fredman & L. Falk, Jews in American Wars 100-101 (5th ed. 1954); Brief for Jewish War Veterans of the United States of America, Inc., as Amicus Curiae 33.
See G. Draffan & J. Blaeloch, Commons or Commodity? The Dilemma of Federal Land Exchanges 10 (2000). Congressionally authorized land exchanges are common. See, e. g., Consolidated Natural Resources Act of 2008, § 101(d), 122 Stat. 758; National Defense Authorization 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.
Concurrence Opinion
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 authority 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 711-712.
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 719. 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 privately owned, the Government can prevent the cross’s display only by making it illegal Prohibitory legislation does not consist of a mere refusal to “per-mi[t],” nor is the enactment of legislation what the injunction commanded (a command that would raise serious First Amendment and separation-of-powers questions).
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 jurisdiction, Buono “bears the burden of showing that he has standing for each type of relief sought,” Summers v. Earth Island Institute, 555 U. S. 488, 493 (2009); see Los Angeles v. Lyons, 461 U. S. 95, 105 (1983). A plaintiff cannot sidestep Article Ill’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 cannot 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 imminently threatened injury to [him] caused by private or official violation of law.” Summers, supra, at 492. He has failed, how
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, he reiterated that although the “presence of the cross on federally owned land in the Preserve deeply offends [him] and impairs
These same considerations bear upon the plurality’s assertion that Buono has standing to “prevent the Government from frustrating or evading” the original injunction, ante, at 713. 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 nature of the new private ownership violate the Establishment Clause. Now it may be that a court has subject-matter jurisdiction to prevent frustration or evasion
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 question 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 certain 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 Ill’s ease-or-controversy requirement is not merely a prerequisite to relief, but a restraint on judicial power. See Summers, 555 U. S., at 492-493.
Keeping within the bounds of our constitutional authority 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 Ill’s limits upon our jurisdiction respects 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.
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 en
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 740-741 (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, when failing to
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.
The principal dissent insists, post, at 738-739, 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 memorial 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.
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 because the Government’s unconstitutional endorsement of the cross will induce him to avoid the Sunrise Rock area.” Post, at 739, n. 2 (internal quotation marks and citation omitted). But the only “endorsement” of which Buono complained was “[t]he placement of the Cross on federally-owned land,” App. 59, whieh “offend[s]” him only because the property “is not open to groups and individuals to erect other freestanding, permanent displays,” id., at 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.
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 761-762 (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 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.
Dissenting Opinion
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 (Preserve) “as a national memorial commemorating United States participation 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 message 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
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 Establishment 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 Mojave National Preserve.” App. 39. The Government declined 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 government 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 endorsement was proper.
We are, however, faced with an additional fact: Congress 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
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 circumstances underlying an injunction,’” ibid, (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2961, pp. 393-394 (2d ed. 1995) (hereinafter Wright & Miller)), and “ ‘[a] continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need,’” ante, at 718 (quoting United States v. Swift & Co., 286 U. S. 106, 114 (1932)).
I further accept that the District Court’s task was to evaluate the changed circumstances “in light of the objectives of the 2002 injunction.” Ante, at 720. 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 718. That formulation implies that the changed circumstances 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 injunction 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.
Although I agree with the plurality's basic framework, I disagree with its decision to remand the case to the District Court. The District Court already “engagefd] in the appropriate inquiry,” ante, at 715, and it was well within its rights to enforce the 2002 judgment. First, the District Court
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 “permitting the display of the Latin cross in the area of Sunrise 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 “permitís]” 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 730. If the land were already privately owned, Justice Scalia may be correct that the cross’ display on Sunrise Rock would not violate the injunction because the Government would not have to do anything to allow the cross to stand, and the Government could try to prevent its display only by making such
Moreover, §8121 was designed specifically to foster the display of the cross. Regardless of why the Government wanted to “accommodatfe]” the interests associated with its display, ante, at 717 (plurality opinion), it was not only foreseeable but also intended that the cross would remain standing. Indeed, so far as the record indicates, the Government had no other purpose for turning over this land to private hands. It was therefore proper for the District Court to find that the transfer would violate its 2002 injunction and to enforce that injunction against the transfer.
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 expedition,” 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 enjoining 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 decree “may not be changed in the interests of the defendants if the purposes of the litigation... have not been fully achieved.” Id., at 248 (emphasis deleted). And contrary to the Government’s position,
The objective of the 2002 judgment, as the plurality grudgingly allows, was to “avoi[d] the perception of governmental endorsement” of religion. Ante, at 720; 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 transfer). 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,’ ‘favoritism,’ or ‘promotion,’ the essential principle remains the same. The Establishment Clause, at the very least, prohibits 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 . . . projects] a message of government endorsement [of religion] to a reasonable observer.” Buono II, 371 F. 3d, at 549. The determination that the Government had endorsed religion necessarily rested on two premises: first, that the Government endorsed the cross, and
In my view, the transfer ordered by § 8121 would not end government endorsement of the cross for two independently sufficient reasons. First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding that the name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing Government endorsement of the cross because the purpose of the transfer is to preserve its display. Congress’ intent to preserve the display of the cross maintains the Government’s endorsement of the cross.
The plurality does not conclude to the contrary; that is, it does not decide that the transfer would end government endorsement of the cross and the religious message it conveys. Rather, the plurality concludes that the District Court did not conduct an appropriate analysis, and it remands the case for a do-over. I take up each of the purported faults the plurality finds in the District Court’s analy
Perception of the Cross Post-Transfer
The 2002 injunction was based upon a finding of impermissible effect: The “Sunrise Rock cross ... projeet[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 endorsement ... of religion.” Lynch, 465 U. S., at 692 (O’Connor, J., concurring). As the Court of Appeals correctly 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).
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
In 2000, and again after the District Court had entered its initial injunction, Congress passed legislation prohibiting the use of any federal funds to remove the cross from its location on federal property. See Consolidated Appropriations Act, 2001, Pub. L. 106-554, §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 presence of a cross on federal property, Congress singled out that cross for special treatment, and it affirmatively commanded 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 Representatives — indeed, without a moment of discussion in any official forum — Congress passed legislation officially designating 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. Once that momentous step was taken, changing the identity 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.
At the risk of stating the obvious, respondent is not simply challenging a private object on private land. Although “an Establishment Clause violation must be moored in government action of some sort,” Pinette, 515 U. S., at 779 (O’Con-nor, J., concurring in part and concurring in judgment), respondent’s objection to the transfer easily meets that test for two reasons. First, he is currently challenging official legislation, taken in response to an identified Establishment Clause violation. That legislation 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 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
Furthermore, even assuming (wrongly) that the cross would be purely private speech after the transfer, and even assuming (quite implausibly) that the transfer statute 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, 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, actually convey a message of endorsement.” Id., at 777 (opinion of O’Connor, J.). Moreover, the Establishment Clause “imposes affirmative obligations that may require a State, in some situations, to take steps to avoid being perceived as supporting 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 Establishment Clause violation — for the District Court to consider 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
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 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 Congress’ purpose, ante, at 715, so I need not review the evidence in great detail. Suffice it to say that the record provides ample support. The land-transfer statute authorizes a conveyance to the particular recipient that has expressed an intent to preserve the cross. See Brief for VFW et al. as Amici Curiae 4 (transfer recipient “intends to maintain and preserve the Veterans Memorial”); id., at 7 (identifying Veterans Memorial as the “cross and plaque”). And it conveys the particular land that has already been designated “as a national memorial” commemorating the veterans of World War I, § 8121(a), 117 Stat. 1100, subject to a reversionary clause requiring that a memorial “commemorating United States participation in World War I and honoring the American veterans of that war” be
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 appropriate. 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 passage,” ante, at 715, and it directs the District Court's attention to three factors: the message intended by the private citizens who first erected the cross, ibid.; the time the cross stood on Sunrise Rock and its historical meaning, ante, at 716; and Congress' balancing of “opposing interests” and selection of a “policy of accommodation,” ante, at 716-717; see also ante, at 721.
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 constituted a novel or changed circumstance since the entry of the 2002 injunction. Whatever message those who initially 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 Christian 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 historical meaning that the cross had at
This brings us to the final factor identified by the plurality: Congress’ “policy of accommodation” for the cross.
I do not see why it was incumbent upon the District Court to examine this second-order purpose when determining 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 opportunity 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.
The plurality would have the District Court revise its entire analysis of whether the transfer would end government 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 endorsement 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 legislative history or findings — there are none — the plurality opines that Congress wanted to keep the cross in place in order to accommodate those who might view removal as “conveying disrespect for those the cross was seen as honoring,” ante, at 716, and it suggests that this decision was an acceptable method of “balanc[ing] opposing interests” be
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
The proper remedy for an Establishment Clause violation is a legal judgment, which is not the sort of issue for which Congress “ ‘has both wisdom and experience . . . that is far superior to ours.’” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 461 (2010) (Stevens, J., concurring in part and dissenting in part) (quoting Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 650 (1996) (Stevens, J., dissenting)). Moreover, the inference that Congress has exercised its institutional competence — or even its considered judgment — is significantly weaker in a case such as this, when the legislative action was “buried in a defense appropriations 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 728 (opinion of Alito, J.), but §8121 presents no factual findings, reasoning, or long history of “‘careful legislative adjustment,’” Citizens United, 558 U. S., at 461 (opinion of Stevens, J.) (quoting Federal Election Comm’n 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 463 (opinion of Stevens, J.), nor did it develop a record of any kind, much less an exhaustive one, see id., at 411-412 (noting the legislative record for the Bipartisan Campaign Reform Act of 2002 spanned 100,000
Furthermore, in the Establishment Clause context, we do not accord any special deference to the legislature on account of its generic advantages as a policymaking body, and the purpose test is not “satisfied so long as any secular purpose for the government action is apparent,” 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 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 because of its salience as a cross. C£ 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.
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 statute’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 . . . statute.” Ante, at 722. 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 corn
* * *
Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect. As far as I can tell, however, it is unprecedented in the Nation’s history to designate a bare, unadorned cross as the national war memorial for a particular group of veterans. Neither the Korean War Memorial, the Vietnam War Memorial, nor the World War II Memorial commemorates our veterans’ sacrifice in sectarian or predominantly religious ways. Each of these impressive structures pays equal respect to all members of the Armed Forces who perished in the service of our country in those conflicts. In this case, by contrast, a sectarian symbol is the memorial. 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 decisions 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 memorial. 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 pursuant 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 hon
I respectfully dissent.
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 718. But the effect of the
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
The plurality faults the District Court for not engaging in this analysis, but the District Court did implicitly consider how a reasonable 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 723 (concurring opinion). But in the colloquy to which The Chief Justice refers, 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 hypothetical 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.
A less informed reasonable observer, see Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 807 (1995) (Stevens, J., dissenting), 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 IV, 527 F. 3d 758, 783 (CA9 2008). For any reasonable observer, then, the transfer simply would not change the effect of the cross.
The plurality barely mentions this designation, except to assert that the designation gave recognition to the historical meaning of the cross. See ante, at 716. But the plurality does not acknowledge that when the Ninth Circuit affirmed the 2002 judgment, it concluded that the designation 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 720.
See, e. g., Pinette, 515 U. S., at 760 (characterizing Ku Klux Klan-sponsored cross as religious speech); id,., at 776 (O’Connor, J., concurring 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 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”).
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
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 721. 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 individual, as when it marks the grave of a
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 716. 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 Superintendent, Mojave National Preserve (Jan. 81, 2000), Decl. of Peter J. Eliasberg in Buono v. Norton, No. EDCV 01-216-RT (SGLx) (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” faded but locals were “inspired... to reinstate the Easter sunrise services” at the cross. Ibid.
Although the plurality uses the term “accommodation,” I do not read its opinion to suggest that Congress’ poliey vis-á-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 creche 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”).
Justice Auto similarly affords great weight to Congress’ purported interest in “avoiding the disturbing symbolism associated with the destruction of the historic monument.” Ante, at 727 (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 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 country’s religious heritage,” ante, at 726. 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 726, 727. Regardless, in this ease 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 ameliorate the remedial ineffectiveness of §8121.
I have not “jumpled] to the conclusion that Congress’ aim in enacting the land-transfer law was to embrace the religious message of the cross.” Ante, at 729 (opinion of Auto, 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 Auto 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
Dissenting Opinion
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 significant 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 713-714, we must here assume that the original display of the cross violated the Constitution because “the presence of the cross on federal land conveys a message” to a “reasonable observer” of governmental “endorsement of religion.” Buono v. Norton, 212 F. Supp. 2d 1202, 1216-1217 (CD Cal. 2002). See Travelers Indemnity Co. v. Bailey, 557 U. S. 137, 152 (2009) (once orders become final on direct review, they
Moreover, we are not faced with the question whether changed circumstances require modification of the injunction. 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 plaintiff’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 Government must not “permi[t] the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” App. 39. In my view the law authorizes the District 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 meaning
Second, a court should construe the scope of an injunction 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 circumstances 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 (CA2 1942). And they have long refused to “permit defendants 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).
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 “conveys a message of endorsement of religion” to “a reasonable observer” in violation of the Establishment Clause. 212 F. Supp. 2d, at 1216-1217. (As I have said, for present purposes we must assume that this is so.) The purpose 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.
• The new statute directed the transfer of the “property . . . designated ... as a national memorial” to a private entity with an interest in maintaining the cross in its current location, in exchange for a parcel of land located elsewhere in the preserve owned by private individuals who have taken a similar interest 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), ibid.
*764 • 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 federal funds to remove the cross from its present location. 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 “[Government's continuing control over the Latin cross” and the involvement of private parties who “desir[e] its continued presence in the Preserve” “demonstrate]” that the transfer would not end “the [Government's apparent endorsement of a particular religion”); id., at 1182 (considering the historical context of the transfer statute); see also Buono v. Kemptkorne, 527 F. 3d 758, 783 (CA9 2008) (“carving out a tiny parcel of property in the midst of this vast Preserve . . . 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 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 circumstances presented to the District Court, the transfer would have resulted in such a display and might well have conveyed
Because my conclusion rests primarily upon the law of injunctions, because that law is fairly clear, and because we cannot properly reach beyond that law to consider the underlying Establishment Clause and standing questions, I can find no federal question of general significance in this case. I believe we should not have granted the petition for certiorari. 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.
