Unalienable Rights Foundation

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
et al ., PETITIONERS v. FRANK BUONO

[April 28, 2010]

Justice Stevens , with whom Justice Ginsburg and Justice Sotomayor join, dissenting.

In 2002 Congress designated a “five-foot-tall white cross” located in the Mojave National Preserve “as a 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 U. S. 677, 718 (2005) ( Stevens , J., dissenting) (quoting Lee v. Weisman , 505 U. S. 577, 641 (1992) ( Scalia , J., dissenting)). A Latin cross necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ. In my view, the District Court was right to enforce its prior judgment by enjoining Congress’ proposed remedy—a remedy that was engineered to leave the cross intact and that did not alter its basic meaning. I certainly agree that the Nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message.

on writ of certiorari to the United States Court of Appeals for the Ninth Circuit

[April 28, 2010]

Justice Scalia , with whom Justice Thomas joins, concurring in the judgment.

I agree with the plurality that the Court of Appeals erred in affirming the District Court’s order enjoining the transfer of the memorial to the Veterans of Foreign Wars (VFW). My reason, however, is quite different: In my view we need not—indeed, cannot —decide the merits of the parties’ dispute, because Frank Buono lacks Article III standing to pursue the relief he seeks. The District Court had no power to award the requested relief, and our 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 7. ¹Nor is Buono’s standing to request enforcement of the original injunction at issue. If he sought only to compel compliance with the existing order, Article III would not stand in his way.

Justice Kennedy , Opinion of Kennedy, J.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
et al ., PETITIONERS v. FRANK BUONO

on writ of certiorari to the united states court of appeals for the ninth circuit

[April 28, 2010]

Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice joins and Justice Alito joins in part.

In 1934, private citizens placed a Latin cross on a rock outcropping in a remote section of the Mojave Desert. Their purpose and intent was to honor American soldiers who fell in World War I. The original cross deteriorated over time, but a reconstructed one now stands at the same place. It is on federal land.

The Court is asked to consider a challenge, not to the first placement of the cross or its continued presence on federal land, but to a statute that would transfer the cross and the land on which it stands to a private party. 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.

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, 1228–1230 (3d ed. 1997). Just over 90 percent of the land in the Preserve is federally owned, with the rest owned either by the State of California or by private parties. The National Park Service, a division of the Department of the Interior, administers the Preserve as part of the National Park System. 16 U. S. C. §§410aaa–41 and 410aaa–46.

Sunrise Rock is a granite outcropping located within the Preserve. Sunrise Rock and the area in its immediate vicinity are federal land, but two private ranches are located less than two miles away. The record does not indicate whether fencing is used to mark the boundary of these ranches. In 1934, members of the Veterans of 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 bars—a vertical one and a shorter, horizontal one. The cross has been replaced or repaired at various times over the years, most recently in 1998 by Henry Sandoz. Sandoz is a private citizen who owns land elsewhere in the Preserve, a portion of which he is prepared to transfer to the Government in return for its conveyance to the VFW of the land on which the cross stands, all pursuant to the statute now under review.

The cross, as built by Sandoz, consists of 4-inch 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 Unalienable Rights Foundation

P.O. Box 65002

Virginia Beach, Virginia 23467-5002

Telephone 757-818-8003

Fax 757.282.2543

E-Mail UnalienableRights@uarf.us

Stevens, J., dissenting

SUPREME COURT OF THE UNITED STATES

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
et al ., PETITIONERS v. FRANK BUONO

Justice Stevens , with whom Justice Ginsburg and Justice Sotomayor join, dissenting.

Scalia, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
et al ., PETITIONERS v. FRANK BUONO

on writ of certiorari to the United States Court of Appeals for the Ninth Circuit

Justice Scalia , with whom Justice Thomas joins, concurring in the judgment.

559 U. S. ____ (2010)

SUPREME COURT OF THE UNITED STATES

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
et al ., PETITIONERS v. FRANK BUONO

on writ of certiorari to the united states court of appeals for the ninth circuit

[April 28, 2010]

Chief Justice Roberts , concurring.

on writ of certiorari to the united states court of appeals for the ninth circuit

The Unalienable Rights Foundation

P.O. Box 65002

Virginia Beach, Virginia 23467-5002

Telephone 757-818-8003

Fax 757.282.2543

E-Mail UnalienableRights@uarf.us

Stevens, J., dissenting

SUPREME COURT OF THE UNITED STATES

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, et al ., PETITIONERS v. FRANK BUONO

Justice Stevens , with whom Justice Ginsburg and Justice Sotomayor join, dissenting.

Scalia, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, et al ., PETITIONERS v. FRANK BUONO

on writ of certiorari to the United States Court of Appeals for the Ninth Circuit

Justice Scalia , with whom Justice Thomas joins, concurring in the judgment.

559 U. S. ____ (2010)

SUPREME COURT OF THE UNITED STATES

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, et al ., PETITIONERS v. FRANK BUONO

on writ of certiorari to the united states court of appeals for the ninth circuit

[April 28, 2010]

Chief Justice Roberts , concurring.

on writ of certiorari to the united states court of appeals for the ninth circuit

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
et al ., PETITIONERS v. FRANK BUONO

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
et al ., PETITIONERS v. FRANK BUONO

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,
et al ., PETITIONERS v. FRANK BUONO