SALAZAR v. BUONO
In 1934, the Veterans of Foreign Wars built a wooden cross on top of Sunrise Rock in the Mojave National Preserve (Preserve) as a memorial to those who died in World War I. The original cross no longer exists, but has been rebuilt several times. Frank Buono, a former Preserve employee, filed suit in a California federal district court seeking to prevent the permanent display of the cross. The genesis of his suit occurred in 1999 when a request to build a Buddhist shrine in the Preserve, near the cross, was denied. He argued that the cross' display on federal property violated the Establishment Clause of the First Amendment. The district court agreed and the cross was covered.
While the case was pending, Congress designated Sunrise Rock a national memorial and barred its dismantling with the use of federal funds. One year later, by land swap, Congress made Sunrise Rock private property in exchange for another parcel of land. Mr. Buono moved to not only enforce the previous court order preventing the display of the cross, but also to prohibit the land swap. The district court granted both motions. The Secretary of the Interior appealed, arguing that the district court abused its discretion.
On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the district court did not abuse its discretion. The court reasoned that the government failed to show that the district court's fact findings or legal standards were clearly erroneous, nor did it show that the district court made an error in judgment.
1) Can Mr. Buono's suit be maintained when he is merely offended by the fact that public land on which a cross is displayed is not a forum for other religious symbols?
2) Did the U.S. Court of Appeals for the Ninth Circuit err in not giving effect to Congress's land swap where Sunrise Rock was made private land?
Legal provision: Establishment Clause, Amendment 1
Yes. Yes. The Supreme Court reversed the Ninth Circuit. With Justice Anthony M. Kennedy writing for the plurality, the Court held that Mr. Buono has standing to maintain this action. Justice Kennedy reasoned that when a party obtains a judgment in its favor, like Mr. Buono, it acquires a "judicially cognizable" interest in ensuring compliance with that judgment. The plurality also held that the district court erred in preventing the government from implementing the land-transfer statute in order to protect Mr. Buono's rights. A court may not order an injunction when it fails to consider all the circumstances bearing on the need for preventive relief. The district court failed to consider the context in which the land-transfer statute was enacted. Justice Kennedy concluded that upon remand the court should conduct a proper inquiry into the continued need for preventive relief in light of the statute.
Justice Samuel A. Alito wrote separately, concurring in part and concurring in the judgment. The district court should not reach the issue whether the implementation of the land-transfer statute would violate the district court's injunction or the Establishment Clause of the First Amendment. Justice Antonin G. Scalia, joined by Justice Clarence Thomas, also wrote separately, concurring in the judgment. Mr. Buono lacked standing; and therefore, the Supreme Court should not have addressed the merits of his claim. Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Sonia Sotamayor, dissented. The district court was correct in preventing the enforcement of Congress' land-transfer statute because the statute was designed to leave the cross in place thus violating the Establishment Clause.
ORAL ARGUMENT OF GEN. ELENA KAGAN ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We will hear argument first today in Case 08-472, Salazar v. Buono.
Ms Kagan: Mr. Chief Justice, and may it please the Court:
The Establishment Clause does not prohibit the sensible action Congress took in enacting Section 8121 and thereby divesting the Federal Government of the property at issue in this case.
The district court gave Congress two basic options when it found the Sunrise Rock War Memorial unconstitutional.
First, Congress could accede to permanently removing the memorial, ending the dispute, but also doing away with a memorial that for 75 years had commemorated America's fallen soldiers and had acquired deep meaning for the veterans in the community.
Or, second, Congress--
Justice Ruth Bader Ginsburg: General Kagan, just as a factual matter, is there any other national memorial that consists of a solitary cross, just that one symbol and no other?
Ms Kagan: --I don't believe that there is, Justice Ginsburg.
There are national memorials that have some religious content to them.
There is, for example, a statue of a Catholic priest holding a very large cross, but most national memorials are -- are not religious.
The -- the -- you know, I think that it would even be possible, for example, to make a church or a synagogue a national memorial.
If -- if Dr. King's church were selected as a national memorial because of -- in order to honor Dr. King, I think that would be permissible.
Justice Ruth Bader Ginsburg: Well, I was just curious as a factual matter whether this lone cross, if -- if there was any other memorial like that, and your answer is no, but there could be other religiously oriented memorials?
Ms Kagan: --Yes, and there is at least one religiously oriented memorial that I know of, which is a priest holding a cross.
Justice Samuel Alito: What are the practical consequences of something being designated as a national memorial?
Ms Kagan: Very little, Justice Alito.
In fact, it has no consequences in terms of the government's supervision of the land.
National memorials can be on private land or on public land.
If they are on private land, nothing goes along with the designation by way of more extensive regulation or supervision by the National Park Service.
Justice Ruth Bader Ginsburg: Is the -- is the private property owner who has this designation free to destroy it after it's been designated a national memorial?
Ms Kagan: Yes, Justice Ginsburg.
The Veterans of Foreign Wars here could in fact take down this memorial once it is transferred to them, if the Court allows that transfer.
Justice Ruth Bader Ginsburg: Could they then substitute whatever other memorial they chose?
Ms Kagan: The--
Justice Ruth Bader Ginsburg: Or would there have to be some government approval?
Ms Kagan: --No, no, no.
The reversionary clause which is at issue, which is a part of the transfer legislation, says that the VFW will have to put up a veterans memorial, but the content of that veterans memorial is entirely up to the VFW.
Justice Ruth Bader Ginsburg: But it wouldn't automatically require acquire a national memorial status, would it, when the government hasn't seen it, hasn't -- I thought that to get national memorial status, the government has to approve what you put up.
Ms Kagan: Yes, that's correct.
If the VFW took down this memorial and substituted a different memorial, that memorial would not at that point have national memorial status.
There is a little bit of a dispute as to whether the -- the VFW could in fact take down the memorial or whether it's designation as a national memorial would prevent them from doing that.
I think it's quite clear, if you look at the statute, that the Section 1369, which is what the Respondents point to, would not prevent the VFW from taking down this memorial, if it so wanted to, because 1369 applies only to national memorials which are on public property.
If the transfer were to take place, of course, it would not be on public property, or it would not be under the supervision, in any way, of the Federal Government.
Justice Antonin Scalia: General Kagan, before you go -- go on with your argument, you presented it as -- as though the issue before us is the -- the conveying of the land.
But is it?
What this was was simply an affirmation of the prior injunction.
The court of appeals said the prior injunction had not been mooted by the -- by the transfer of the land.
So isn't really the issue whether that -- that prior injunction, when the land did indeed belong to the government, whether that prior injunction was valid?
Ms Kagan: --Well, there is a question in this case whether the prior injunction was valid and was the display itself a violation of the Establishment Clause.
Justice Antonin Scalia: Right.
Ms Kagan: But the government argued below that that question had been mooted out because of the passage of the transfer legislation.
Justice Antonin Scalia: But didn't the court of appeals say no?
Ms Kagan: The court of appeals did say no, but it remands the government--
Justice Antonin Scalia: So -- so what we have before us is the court of appeals' affirmation of the prior injunction, which applied to a cross on public land.
Ms Kagan: --Well, I think what you have before you, there were of course two stages in this litigation, and the first stage declared the display unconstitutional, and then the second stage declared the transfer as well unconstitutional or at least a violation of the prior injunction.
Justice Antonin Scalia: Of course, if I -- if I thought the display wasn't unconstitutional, the transfer would a fortiori not--
Ms Kagan: Well, that is correct.
We do think that the issue before the Court now is the congressional legislation which has been passed, which is the transfer legislation, that that has essentially changed the situation on the ground, so that no longer is the question whether the display from the -- whether the display by the government would be constitutional, but only whether the government has the ability to transfer this property and -- and to give up all supervision, all control over it.
So that the message--
Justice Stephen G. Breyer: I don't see why that's the issue before us.
Look, procedurally this is a little boring, but it seems pretty well established in the law.
I read a case called Toledo Scale and then there are a bunch of cases on jurisdiction, which I'm not going to name them because I'm sure you looked at them, but Travelers Indemnity, et cetera.
And it seems to me they make absolutely clear that once a litigant, you and the others, have had an opportunity to raise a matter and now the case is over, done, but for an injunction that stays in, all those issues that they previously raised or could have raised are gone; that the only question left is whether the government has complied with the injunction.
So I read the injunction.
The injunction says the government is enjoined from permitting the display of the Latin cross, period.
Once this law takes effect and you follow it, you are violating that injunction.
You don't need nine proceedings to see that.
You are violating it.
Now, if you don't like the injunction because you think the statute has so changed the circumstances there is no need for it, there is a remedy.
You go back to the district court and you say: Judge, change the injunction.
But you haven't done that.
And therefore, the only question before us is whether the Ninth Circuit is right in saying when you carry the statute into effect, you are violating this injunction, which I think no one could say you aren't.
Now, now, that -- that's a very technical boring issue.
I don't know why we heard this issue, but I don't see how we could reach any other issue in this case.
Ms Kagan: --Justice Breyer, I think we are in perfect compliance with the injunction and have been since the day it was issued.
Now, in fact there were two injunctions issued.
As I said, there were two stages of this litigation.
The first stage ended in an injunction that said do not display the war memorial.
In compliance with that injunction, the next day the war memorial was covered.
So we were in compliance from the -- from the moment that the decision issued.
Now then, Respondents went back to the district court and asked for additional relief, because what -- during the first court of appeals hearing, Congress had passed this transfer statute.
And so the Respondents went back and said: In addition to the injunction that you previously gave us, we essentially need a new injunction and that injunction will be to stop the transfer.
Justice Stephen G. Breyer: But that's not what I'm talking about.
Justice Ruth Bader Ginsburg: I thought the Respondents asked to have the injunction enforced.
It is typical, you get an injunction -- and I'm glad that the government has recognized that that was indeed a final decision because you appealed it to the Ninth Circuit under 1291 as a final decision.
Then the question is, are you complying with the injunction.
One side says, the winner -- who by the way has unquestioned standing to enforce the injunction that is now final that that party obtained -- the winner says: Court, please enforce the injunction.
They are not asking for a new injunction.
They say this injunction, as Justice Breyer just explained, says, do not permit the cross.
The party comes in and says: Here's my injunction; court, all I want you to do is enforce it.
Ms Kagan: Justice Ginsburg, this is much more than an enforcement action.
Justice Stephen G. Breyer: We are talking about the first.
We are talking about the first injunction.
The first injunction says that the government may not permit display.
You've covered it up, so you are not permitting display.
You are in compliance.
Ms Kagan: That is correct.
Justice Stephen G. Breyer: But what the plaintiff here said is that when you comply with this statute, you will not be in compliance, because you will turn it over to the VFW that will uncover it, so you will have permitted it to be displayed.
Now, that I can see is an issue before us.
But I don't see any other issue before us.
Ms Kagan: Justice Breyer, again, the Respondents had to go back to the district court in order not just to enforce the injunction, which said don't display the statue, but to get additional relief, which was don't transfer the statue.
If the transfer had taken place, it would no longer have been the government's property, the government would not have permitted or not permitted the display because it wasn't the government's property to permit or not to permit the display.
Justice Antonin Scalia: --It seems to me unreasonable to read the injunction to say the government shall not permit anybody to display a cross on that land no matter who owns the land.
I assume the injunctions meant you will not permit the cross to be displayed on this parcel of government land.
Ms Kagan: And the Ninth Circuit specifically said -- when this came to the Ninth Circuit, the Ninth Circuit was asked by the Respondents.
In order to rule on the transfer legislation, the Ninth Circuit specifically said: We are not going to do that; that's a decision for another day, a separate decision.
Because of that, the Respondents had to go back to the district court and had to get the district court essentially to modify the injunction and to provided additional relief.
Now, there is some question as to whether the standing question here, just the standing question is precluded, and our view is that it is not preclude, because the way the government views this is it's one entire litigation in which all issues are open.
Justice Ruth Bader Ginsburg: Do you know, General Kagan, any case in which there has been a permanent injunction ordered, final, no more appeals are possible, where -- and standing was in question, raised, litigated, and decided, and then when the party who won the injunction comes to the court and says, court, please enforce the injunction, that you can say, now we can go back to square one and argue again about standing?
I don't see how you can revive what has been determined by a final judgment.
Ms Kagan: Well, either this is one litigation, in which all cases are before the Court, or it's too entirely separate litigations, in which case the Court has an obligation to independently consider the standing question.
Justice Ruth Bader Ginsburg: Well, we know it isn't that because, as I think you pointed out, the same docket number.
This wasn't a new complaint.
This was a motion to enforce the judgment.
Ms Kagan: It couldn't have been a motion to enforce the judgment because the government was in compliance with the judgment and because the Ninth Circuit had said that the question that respondents were raising was an entirely separate issue for another day, according to the Ninth Circuit.
Chief Justice John G. Roberts: I would suppose -- I guess I don't agree with your dichotomy, either it's the same action or it's entirely separate.
I would suppose it could be some issues carry over and are the same, and perhaps standing is one of those.
Other issues are completely new, such as the effect of the legislation, which couldn't have been before the district court since it hadn't been passed.
But standing is different.
I mean, once it's been determined that there is standing and that is reflected in a final judgment, then I think the later aspects are simply whether the person -- once it's embodied in a judgment, I think that is the basis for standing and not the earlier questions of whether he visited it enough or planned to visit enough.
Ms Kagan: Mr. Chief Justice, we could not have taken the standing question to this Court in the -- in the procedural posture that the case was at at that point.
It would have been really an irresponsible action on our part to ask this Court to address the standing issue after the first court of appeals judgment where -- where we knew that we were going to relitigate the question of the validity of the transfer.
We couldn't have come to you, we wouldn't have come to you, as the Solicitor General's Office and asked you to adjudicate a decision that was as likely as not going to be irrelevant.
Justice Sonia Sotomayor: I don't understand -- I don't understand that point at all.
If you thought that he didn't have standing to challenge the cross at all and that the injunction itself directing you to cover up the cross was wrong, you should have come to the Court.
It was a permanent injunction.
You were told you have interlocutory appeal rights, you have final judgment rights.
At any point you could have come and said: The order for us to take that flag -- to take that cross off this land was just plain wrong.
Ms Kagan: I think, Justice Sotomayor, you are right that we could have, but I don't think that we would have used our discretion, in a sense knocking on this Court's door, the Solicitor General's Office discretion, in order to ask you to decide a question that was as likely or not going to be completely irrelevant depending on what happened with respect to the transfer statute.
Justice Sonia Sotomayor: But interlocutory appeal or finality doesn't matter what you are going to do to get away from the injunction.
The issue is did you give up any rights to challenge any of the issues embodied in that injunction and you haven't answered why not.
You may have a right, and you do, to challenge a modification of that injunction.
That's what you are here to do, to say the Ninth Circuit erred in modifying the injunction and stopping the transfer.
Perfectly legitimate point, because the injunction has been changed.
But you can't go back and relitigate whether he had standing to challenge that -- the presence of that cross.
Ms Kagan: Well, Justice Sotomayor, I appreciate the distinction that you are making between the standing question and the merits question and I think you are exactly right as to that point.
But whatever the question as to whether we have given up the standing question, certainly there is no such question on the merits of this -- of the validity of this transfer.
But with respect, I think that the standing question is -- is not the way you described it.
And it's partly because we couldn't have come to this Court or we wouldn't have come, is a better way to say it.
We would have thought that it was not the right kind of position to ask the Court to take certiorari on a question that basically was very likely, we thought, was very likely to go away.
Justice Anthony Kennedy: Well, but that -- that's because -- that's because you assume the act is going to be valid.
You could have come here and said: This is such an important case Congress is taking action, and therefore, you should hear our standing argument to avoid the necessity of the Legislative Branch having to come in.
You could have said that.
Ms Kagan: Well, but we didn't, because we did think that Congress had acted appropriately and that the congressional act was valid, and continue to do so, continue to think that this--
Justice Ruth Bader Ginsburg: Yes, but the standing issue was independently important to the government, because the government can face this kind of question again, and if you right -- if you were right on the standing point -- I mean, I don't understand why the government would not have had a strong incentive to say, we want to get rid of these cases on the standing ground, we think the Court was wrong on standing.
But in any case, you didn't do that, and I think that you started your argument this morning in the right place when you said, let's talk about this law.
Congress said, accepting arguendo that the Court was right, here's a law that cures the constitutional defect.
And that's where you were -- that's where you started your argument.
Maybe you can pick up with that.
Justice Stephen G. Breyer: But just I want to just get this clear procedurally.
It'll take one more second.
As I read this, there is no modification of any injunction.
What the -- what the Respondent asked for, he said: Judge, either hold that the transfer violates the current injunction, or modify the injunction.
Then what the district court did do is he said the proposed transfer violates the permanent injunction.
The permanent injunction is in the, like, the third paragraph of the July 24th order, and it says, you are permanently enjoined from permitting the display of the Latin cross.
Therefore, he rejected the need to modify it, and held that--
Ms Kagan: --Justice Breyer.
Justice Stephen G. Breyer: --this violates the injunction as written, and the Ninth Circuit affirmed that.
So is there any question in this case of modifying?
Is there any question other than the one that I think Justice Scalia was taking a good argument about, whether the proposed statute violates the July 24th injunction?
That's what the case is about.
Or why am I wrong?
Ms Kagan: You -- you are incorrect, Justice Breyer, because in addition to saying this violates the previously given injunction, the district court said, you are enjoined from transferring this property in accordance with this statute.
And so there was additional relief, additional relief that the Ninth Circuit said was additional relief that it wasn't deciding in the first go-round, and that's -- and that places the question, the merits question of the validity of this transfer, directly before the Court.
Justice Stephen G. Breyer: Thank you.
Chief Justice John G. Roberts: Before we get -- before your time expires, we would like to spend a couple of minutes on the merits.
And I wonder if you could focus on a particular question.
What if the government sold simply one square foot, or whatever the area that the base of the cross is -- is resting on the ground?
Would your argument be the same?
Ms Kagan: Mr. Chief Justice, there are certainly limits to the way that the government can transfer property, and I would give you a few of them.
If -- if it was not a bona fide sale, so that there wasn't proper consideration; if -- if there was only religious purpose, so that there was no secular purpose involved; or if after the sale the property was indistinguishable from government property, so that everybody naturally thought that this was government property.
In those cases--
Chief Justice John G. Roberts: Well, why isn't that -- why isn't that the case here?
Ms Kagan: --In fact, it's not the case here.
And it's not the case for two reasons.
First, the preserve is riddled with private inholdings.
There are 1800 private landowners with -- excuse me, 1,000 private landowners with 1800 plots of land.
Justice John Paul Stevens: But what percentage of the total area do they represent?
Ms Kagan: I'm sorry?
Justice John Paul Stevens: What percentage of the total area do they represent?
Ms Kagan: It's about -- between the State and the private inholdings, it's about 10 percent of the total area.
But they are dotted all over the place.
So tomorrow, 1,000 crosses could go up and nobody would know whether they were on private land or on public land.
Justice John Paul Stevens: But do you concede there was a violation at the time the case was decided?
Ms Kagan: --I'm sorry?
Justice John Paul Stevens: Do you concede that the Establishment Clause was violated at the time this case was decided?
Ms Kagan: We do not, Justice Stevens.
The government has argued -- argued below that there was no violation prior to the transfer statute, and that remains the government's position, although, as I said to Justice Scalia, we think that that position has been overtaken by events and that the only question before the Court is the transfer statute.
I was going to go on to say to the Chief Justice that, in addition to the fact that private inholdings just riddle the preserve, the government is perfectly happy to put up signs which make clear that the -- the plot in question will not in fact be the government's, but will be the VFW's.
Chief Justice John G. Roberts: Well, isn't that an interference or it's singling out someone, private property owner, who's using his property in a particular way, a religious way?
You are going to be putting up signs only for people putting up religious symbols.
Ms Kagan: I don't think that that is correct, Mr. Chief Justice.
I think that the preserve would put up signs for various historic or cultural or otherwise important--
Chief Justice John G. Roberts: But it hasn't done anything like that.
It doesn't say for other property owners that have maybe something that -- you know, a ramshackle shack, that they want people to know this isn't the government's property.
They don't do anything like that.
It's -- under your hypothetical, it would be only religious property that would have these special warning signs.
Ms Kagan: --Well, I suspect that there are a great many identification signs throughout the preserve, although I don't know precisely what they are.
And this would be one of those, saying essentially that there is this war memorial, that it was put up by the VFW, that it is maintained and owned by the VFW.
Justice Ruth Bader Ginsburg: --Who would see it, General Kagan?
Who would see it?
I mean, the Seventh Circuit case, it was -- it was on level ground, lots of people used the area, and I think the Seventh Circuit required a fence and a sign.
But here, this cross is high on a cliff in a desolate area.
And if you had a little sign, who would be -- you would have to climb up to it.
Ms Kagan: I actually think, Justice Ginsburg, that it would be easy to do.
I was out there three or four weeks ago.
The superintendent drove me to the site.
There is virtually nobody who could see this war memorial in any other way than by going in one of two directions on Cima Road.
And you could put signs up on Cima Road that said exactly what you were going to see, you know, in 100 yards or a mile or whatever it was.
Chief Justice John G. Roberts: How is the question of -- I don't want to get into your rebuttal time, but briefly, how is the question of whether signs are or aren't valid or required before us in this case?
There are no signs there, and you are asking us to consider whether the statute is valid or not.
Ms Kagan: I think, Mr. Chief Justice, that if we were not going to put up signs, it would still be valid.
So I should make that completely clear.
And as I said, there are many, many private holdings within the preserve, people who could put up whatever religious symbols they wanted to.
One simply wouldn't know whether it was on private land or on other land.
But I will say, in addition to that, that the preserve's superintendent himself would like to put up a sign essentially telling preserve users what the war memorial was and what its provenance was.
Justice Sonia Sotomayor: Isn't there legislation that requires the original plaque to be reinstated, the plaque recognizing the donation and what it means?
Ms Kagan: --That's correct, Justice Sotomayor.
But I have to say that that's more of the kind of sign that maybe Justice Ginsburg had in mind, which is, it's smaller and you would have to go right up to the war memorial in order to see it.
I think it would be very easy to put up signs just on the road to make clear that anybody who was in the area would know that this was land--
Justice Sonia Sotomayor: This would be on government land, that sign?
It wouldn't be on the acre that you transferred.
I'm a little confused.
Ms Kagan: --The small plaque.
Justice Sonia Sotomayor: You are talking about putting--
Ms Kagan: The small plaque--
Justice Sonia Sotomayor: --Would go on the cross?
Ms Kagan: --That's correct.
Justice Sonia Sotomayor: The larger sign you're talking about that you are willing to do is a sign that you would put on government land.
Ms Kagan: That's correct.
And as I said, it's something that the superintendent would like to do and I think would be consistent with signage in the area.
Justice Sonia Sotomayor: Did you raise that alternative with the Ninth -- with the district court and the Ninth Circuit?
Ms Kagan: --I don't believe it ever came up, Justice Sotomayor.
We did talk about it in our merits brief to this Court, but I don't think that it ever came up below.
If I could reserve the balance of my time, Mr. Chief Justice.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF PETER J. ELIASBERG ON BEHALF OF THE RESPONDENT
Mr. Eliasberg: Mr. Chief Justice, and may it please the Court:
Justice Breyer, I would like to direct my beginning remarks to you.
I believe you've correctly stated the procedural posture exactly right.
The only question, point that I would make, is that I don't believe we did -- there was a modification of the injunction here.
Any time a defendant passes a piece of legislation after an injunction is first entered, there may be a question as to whether that new statute or legislation is consistent with the injunction.
But it's not new relief.
Justice Stephen G. Breyer: I see what the judge did.
He said: The motion to enforce the July 24th injunction is granted.
He said: Buono's motion to amend it is denied.
Then he did two other things, which he listed some people and he said they are enjoined from implementing the law.
Now, I take it that those paragraphs 3 and 4 are an implementation of the July 24 injunction which he granted, not a new injunction.
Mr. Eliasberg: That's exactly correct.
Justice Stephen G. Breyer: So that's the issue here that we were just possibly debating.
The issue in the case is whether the district judge might lawfully enforce an old injunction in the manner he did, which was to add paragraphs 3 and 4.
That question you concede is here.
Mr. Eliasberg: I believe that's -- that is here and that is really the only question that is here.
Chief Justice John G. Roberts: So that under your approach that this is looking to see if the injunction is being enforced or violated, we would be reviewing an act of Congress under an abuse of discretion standard, not -- not de novo?
Mr. Eliasberg: That's correct.
But for this--
Chief Justice John G. Roberts: Have we ever done that before?
Mr. Eliasberg: --I--
Chief Justice John G. Roberts: Have we ever said that an act of Congress is unconstitutional without a de novo review of the merits of the constitutionality?
Mr. Eliasberg: --I am not aware of that, but I am also not aware of a situation where the act of Congress is being put forth as the response to an already adjudicated constitutional violation.
Justice Ruth Bader Ginsburg: Mr. Eliasberg, I thought that the Ninth Circuit the first time around had taken meticulous care to make certain that the issue of the validity of the statute would not be before the Court in the first round.
Judge Kozinski wrote:
"We express no view as to whether a transfer completed under Section 8121 would pass constitutional muster, but leave this question for another day. "
That's on page 104a of the petition.
And then the district judge said: Yes, I recognize the Ninth Circuit didn't touch the validity of that statute, left it for another day.
The day has come.
So it is for the first time that the Court is deciding the question of whether section 8121 passes constitutional muster.
Mr. Eliasberg: The only thing I would disagree with you on that point, Justice Ginsburg, is that the question is whether the act of Congress remedies the already adjudicated constitutional violation and is consistent with the injunction.
Chief Justice John G. Roberts: So when you get to the consistent with the injunction part -- I thought it was your position that we should review this question solely under an abuse of discretion standard?
Mr. Eliasberg: It is our position--
Chief Justice John G. Roberts: Because while the Court did not decide the validity of the act in the first case, it certainly did in the second case, which is why we have the case before us.
Mr. Eliasberg: --That is correct.
We believe -- but may I make two points, Mr. Chief Justice?
First, we believe in the enforcement context where the question is, is this a violation of an already entered injunction that was part of a final judgment, that that is traditional equity principles that you review for an abuse of discretion.
Nonetheless, we believe that we win even under a de novo standard.
So -- and if I could set forth some of the reasons for that.
I think, Justice Breyer, that you have it exactly correct, that what the government has done here by selecting a particular transferee who has been given preferential access to the land in the past to the exclusion of others who wanted to erect other symbols, that the government is taking affirmative steps to permit, through this transfer statute, the display of the cross that they are enjoined from doing.
Now, Justice Scalia, I believe your point is at some point if this is on private land and the government is not making any efforts to further this display, that it couldn't possibly be that the injunction forbids that.
And that may well be correct, but that is not the case we have in front of it.
The government in this transfer statute has made a significant number of affirmative steps to ensure that the cross remains up.
It has selected--
Justice Samuel Alito: When this injunction was first entered the statute -- nobody contemplated that this statute was going to be enacted; isn't that correct?
Mr. Eliasberg: --When the district court entered the injunction, that is correct.
Justice Samuel Alito: Yes.
So isn't the sensible interpretation of the injunction that it was prohibiting the government from permitting the display of the cross on government property, and not on private property that happens to be within the Mojave National Preserve?
Mr. Eliasberg: I don't believe so, Justice Scalia -- excuse me -- Justice Alito, for a couple of reasons.
One of the bases for the entry of the injunction in the first instance was the way that the government had favored one party to come on, contrary to the government's own regulations, and erect a permanent symbol, while not allowing others.
Justice Samuel Alito: Wasn't your argument that this was a violation of the Establishment Clause because it was on government land?
Did you make the argument that even if this was on one of the ranches within the Mojave National Preserve, it would still be a violation of the Establishment Clause?
Mr. Eliasberg: We did not make that argument because it wasn't presented to the Court.
Justice Samuel Alito: Yes, it was a totally -- so the situation completely changed and the district court either modified the injunction -- it seems to me modified the injunction by interpreting it to mean something quite different from what anybody contemplated it meant when it was originally entered?
Mr. Eliasberg: Well, I think that, as is traditional equity principles, the district court is at some level the master of its injunction and that's why we give an abuse of discretion standard.
The district court very clearly said: I see this as an attempt by the government not to abide by my injunction; they are favoring the same parties they favored when -- that was part of the--
Justice Antonin Scalia: Well, of course, it was that, but the question is whether it was a permissible amendment by the government of the situation.
Of course, I will stipulate that the government was trying to arrange it so that the cross could remain there.
But that doesn't mean that it was -- it was evading the injunction.
I mean, that's--
Mr. Eliasberg: --Well, I think it is--
Justice Antonin Scalia: --Unless the injunction clearly applied to the erection of a cross on private land that the government had -- had transferred.
Mr. Eliasberg: --Well, but it's not the erection of the cross.
It is the transfer of something where the government has a reversionary interest.
It very much directs the way the VFW is likely to use the land.
It selected a particular transferee who has been favored from the beginning.
They didn't say: We're going to neutrally sell the land in order to allow this constitutional violation to be--
Justice Antonin Scalia: I will -- I will concede that the obvious purpose of that was to avoid being in violation of the injunction.
But that doesn't mean that it's invalid.
Mr. Eliasberg: --Well, I believe it's invalid because I think that the affirmative steps they are taking here really make them -- put them in a position where they are permitting--
Justice Sonia Sotomayor: Can -- can -- what, what -- let's start from the beginning.
Can -- would it be proper for the government or would the government be alleged to have violated the Establishment Clause if on another ranch that cross -- a cross went up?
Mr. Eliasberg: --No, they would not.
Justice Sonia Sotomayor: All right.
So really your argument is that the reason this Court -- this cross on private land, if it becomes private, is offensive to the Establishment Clause is because of the government's prior history with respect to that cross, correct?
That's -- that's your argument?
Mr. Eliasberg: That is one part of my argument.
But there is another part.
The government has taken the step of designating this cross one of 49 national memorials in the whole country and the only national memorial commemorating American service in World War I, even though it's clear in the record--
Justice Sonia Sotomayor: So are you alleging that doing that violates the Establishment Clause, passing or designating a religious symbol as a national memorial, that that violates the Establishment Clause?
Mr. Eliasberg: --We are alleging that under the totality of the circumstances, which includes the national memorial designation, the government's asserted purpose to make sure that the cross remains up, the government's favoritism of the same parties that it has always favored in this case to the exclusion of others, and the maintaining of the property interest in the land in the form of a reversionary interest, all of those things--
Justice Sonia Sotomayor: Does that apply to all lands in this preserve?
Mr. Eliasberg: --I'm sorry, does what apply to all lands?
Justice Sonia Sotomayor: Does the reversionary interest apply to all of lands on this preserve?
Maybe your adversary has to answer that instead of you, but all of the other private property owners.
Mr. Eliasberg: No, the reversionary interest specifically says the land reverts to the government if--
Justice Sonia Sotomayor: No, no, no.
Are all of the private owners on this preserve required to give the land back to the U.S. if they put it to some different use?
Mr. Eliasberg: --I don't believe that that is true.
Chief Justice John G. Roberts: Counsel, if -- if -- if the government sold this land to a private party, no cross in the picture at all, and they go to settlement and at settlement the private landowner who is going to buy it says, you know, I'm going to put a big cross up on this property once I get it, can the government still sell it to him?
Mr. Eliasberg: Yes, absolutely.
Chief Justice John G. Roberts: Okay.
Mr. Eliasberg: If the basis for the government's decision to sell the -- sell the land was a neutral basis.
And that's what we are saying here.
If what the government has done--
Chief Justice John G. Roberts: So even though before the sale, even though the government knows there is going to be a big cross on the land with the same situation you have here in the middle of the preserve and all, that's perfectly okay?
Mr. Eliasberg: --No, it's--
Chief Justice John G. Roberts: I thought you said before the government sold the land if they find out the new owner is going to put a cross on it there is no problem.
Mr. Eliasberg: --The difference between those two scenarios, Mr. Chief Justice, is one is a remedial context.
The government has been held to violate the Constitution.
They have to, under Milliken v. Bradley and U.S. v. Virginia, take all steps necessary to erase that constitutional violation.
The situation in the first hypothetical you gave me, there has never been an adjudicated constitutional violation.
It's a very different situation.
Justice John Paul Stevens: But isn't it also a very different case if a condition of the transfer is that the transferee will preserve a memorial that has been designated in the statute as a five-foot-tall white cross.
Mr. Eliasberg: I think that is--
Justice John Paul Stevens: So it is a condition of the transfer.
Mr. Eliasberg: --As I was stating to Justice Sotomayor, that is one of the factors that we believe separates this situation from the kind of hypotheticals that you're setting forth.
Chief Justice John G. Roberts: Do you disagree with what she told us, which is that the private property owner can tear down the cross at any time?
Mr. Eliasberg: I think that there are very significant obstacles to their doing that.
One, I don't -- I disagree with the General's -- General Kagan's description of the criminal statute that prohibits the defacement of memorials on private land, because one of the provisions is that we will consider it a situation that is covered by the statute that the land be under the jurisdiction of the Federal Government.
Well, the land -- the statute that designated the Mojave Preserve very clearly says that the land is being transferred from the jurisdiction of the Bureau of Land Management to the National Park Service and the Secretary of the Interior, so it is therefore clearly under the jurisdiction of the Federal Government.
So I think that there is -- there are possible criminal violations.
There is also a significant question--
Chief Justice John G. Roberts: You say under the jurisdiction of the Federal Government.
Does that -- do you just mean they have authority to regulate the land?
Mr. Eliasberg: --That's correct.
But that's the way the statute is written, under Federal jurisdiction, so I believe that those two terms--
Chief Justice John G. Roberts: Well, I suppose they have jurisdiction to regulate a lot of -- lot of land that they don't own.
Mr. Eliasberg: --Well I think that in this case when the government is actually -- there's quite a bit of case law -- we set forth some in our brief -- where they talk about the government's power over land that's within a national preserve, so I do think that the criminal statutes may very well apply.
It certainly would be a barrier to the VFW's thinking, well, no risk to us if we tear this cross down.
In addition, the government is required, as I believe one of the Justices and I don't remember which -- the government has been required to go back and put up a plaque that says: This cross erected in honor of the foreign war dead.
It would be very odd indeed, I believe for the VFW--
Chief Justice John G. Roberts: What else -- what else does the plaque say.
Mr. Eliasberg: --The plaque says: "This cross" -- in big letters --
"erected in honor of the dead of foreign wars. "
I think it would be very--
Chief Justice John G. Roberts: And that's it?
Mr. Eliasberg: --Nothing else.
I think it would be very odd indeed for the VFW to feel that it was free to take down the cross and put up, for example, a statues of a soldier which would honor all of the people who fought for America in World War I, not just Christians, and say: Well, we were free to do that because even though there's the sign that says, this cross is designated to honor all the--
Justice Antonin Scalia: The cross doesn't honor non-Christians who fought in the war?
Is that -- is that--
Mr. Eliasberg: --I believe that's actually correct.
Justice Antonin Scalia: --Where does it say that?
Mr. Eliasberg: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans--
Justice Antonin Scalia: It's erected as a war memorial.
I assume it is erected in honor of all of the war dead.
It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect?
A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
Mr. Eliasberg: --Well, Justice Scalia, if I may go to your first point.
The cross is the most common symbol of the resting place of Christians.
I have been in Jewish cemeteries.
There is never a cross on a tombstone of a Jew.
So it is the most common symbol to honor Christians.
Justice Antonin Scalia: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead.
I think that's an outrageous conclusion.
Mr. Eliasberg: Well, my -- the point of my -- point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross.
This cross can't honor us because it is a religious symbol of another religion.
Chief Justice John G. Roberts: Can I get back to your plaque question?
Am I wrong?
I think the government told us the plaque reads:
"The cross erected in memory the dead of all wars, erected 1934 by members of Veterans of Foreign Wars, Death Valley Post 2884. "
Mr. Eliasberg: That is correct, Mr. Chief Justice, and I apologize.
Chief Justice John G. Roberts: That's a big difference.
I mean, the whole point is that the plaque tells you, this is not a government memorial, government structure.
It was put up by members of the Veterans of Foreign Wars, Death Valley Post 2884.
Mr. Eliasberg: --Mr. Chief Justice, the context of your question was would VFW feel constrained to keep the cross up?
And my point was--
Chief Justice John G. Roberts: The context of my question was what does the plaque say?
Mr. Eliasberg: --Well -- I -- I apologize for not giving the full text, that was not my intention to -- to mislead the Court or to you, Mr. Chief Justice.
Chief Justice John G. Roberts: All right.
Mr. Eliasberg: My only point is that in that scenario, because did I believe we were talking about, is the VFW free to do this, and I was pointing to the criminal statute that I said I believe said that they couldn't -- wouldn't feel free to take this down.
But second of all, that it would be odd indeed for them to take it down when there is a big plaque that says this cross erected.
With all of the--
Justice Samuel Alito: When the Solicitor General represents to us that the VFW will be perfectly free to modify this memorial in any way it chooses if they obtain title to this land, do you think that there's any realistic fear that they will be required to maintain this cross, even if they wish to -- to change it in some way?
Mr. Eliasberg: --Well, I think that there is a real -- well, but -- but I don't think that the cases turn on whether a prosecutor says well, I promise you that we are not going to enforce the statute.
I think we have to look at the words of the statute and the words of the reversionary interest, and I think they both create significant doubt as to whether the VFW would feel free to turn this -- to take it down, in the same way that in a context where you are talking about pre-enforcement--
Justice Samuel Alito: Well, I thought your argument was that although there was going to be a formal transfer of title, as a practical matter, the government was still involved with the maintenance of the cross on this land.
And when the government says that that's not the case, I don't know why that doesn't cure the practical problem.
Mr. Eliasberg: --Well, that -- the -- the question of government -- continued government involvement with the land, I believe, continues, because of the reversionary interest and because of the designation as a national memorial.
Justice Ruth Bader Ginsburg: I think -- I think General Kagan agreed that they -- the Veterans couldn't substitute some other memorial, if it's going to be a national monument it has to have the government's approval.
And the only one that has the government's approval is the cross.
Mr. Eliasberg: --That is correct, Justice Ginsburg.
I don't want to speak for General Kagan but with respect to the question--
Justice Samuel Alito: Well, I -- I thought the government's position was it had to be maintained as a national war -- as a war memorial, but not that it had to be maintained as a cross.
Mr. Eliasberg: --That is the government's position.
But Justice Ginsburg, your question is would something else they put up be a national memorial, and the answer is no.
Only Congress has the power to designate a national memorial.
Congress has chosen to designate this particular stand-alone Latin cross as a government -- as a national memorial.
Justice Ruth Bader Ginsburg: What about the government's argument that suppose the government took down the cross, gave it back to the Veterans of Foreign Wars, sold them the land in exchange for land of equal value, and then the Veterans said, fine, the cross was ours to begin with.
Now the land is ours, so we just put it back.
If that would be consistent with the injunction?
The government now has nothing to do with the cross.
It's all the Veterans of Foreign Wars, and it can't be regarded a sham because it was originally the Veterans of Foreign Wars who put it up, the government didn't put it up.
Mr. Eliasberg: I believe that that -- obviously not the facts presented by our case, Justice Ginsburg, but that likely would be consistent with the injunction, that's correct.
But it is not the scenario we have here.
Justice Ruth Bader Ginsburg: Then we are talking about something that is rather formal rather than substantial.
If -- if all the government would have to do is say, Congress, you didn't get it right.
You should have just made the land swap.
And then the government would take down the cross in compliance with the injunction, and then it goes right back the next day.
Mr. Eliasberg: Well, I think if there -- if there were -- I think it's not just formalism, Your Honor, because one, the reversionary -- I am assuming that in your hypothetical the reversionary interest is gone.
That is continuing government ownership, future ownership in property, and one of the government's principal arguments is when we sell to it a private owner everyone presumes that the private owner is the speaker.
But when the government maintains a substantial future property interest, they haven't sold the land.
They've sold part of their interest in the land.
So if you take away the reversionary interest and you remove the national memorial designation and then the VFW independently does choose to put up the cross, it's more than formalism.
It is the--
Justice John Paul Stevens: But there is also the point that I don't think you stressed, that if the reversionary interest was activated -- say they abandoned or destroyed it, the property would come back to the government.
And if I read the -- the designation of the national memorial statute correctly, the Department of Interior would have to rebuild the old cross and put it up.
There's an affirmative duty to replace the cross if there is a reversion.
Mr. Eliasberg: --I believe that that is correct, Justice Stevens, and that's an important point that is intertwined with the fact that the reversionary interest also continues the government's ownership in the land, when their whole position is, if we privatize it, as Justice Scalia pointed out, if it's just a private owner, then we don't associate this cross with the government.
We associate it with the private owner.
But the government hasn't done that.
It has maintained an important ownership interest in the land through that reversionary interest.
If there are no further questions, I will--
Justice John Paul Stevens: May I ask this question: Do you think the issues in this case would be -- stay the same or different, if this whole scenario occurred on the Mall in -- right out in front of the Washington -- the Lincoln Memorial?
Would the -- the issues be any different if it were not an isolated memorial in the desert?
Mr. Eliasberg: --Context has always mattered to this Court in Establishment Clause cases.
Justice John Paul Stevens: And which way would it cut, if it is different?
Mr. Eliasberg: Well, I do think that Washington is, certainly, a seat of power, and there is, obviously, a close tie between something that is put on the National Mall in the seat of government, but I do think that the designation of a national memorial is also significant.
So, even though this may be an area that is not nearly as populated as Washington, D.C., it is very significant that Congress has taken the step with this particular symbol, one of only 49 in the country, grouping it with other iconic statues and memorials in this country and tied it.
So I don't think that the distinction, although it might have some bearing in the Court, in thinking of the context, I don't think it would change the result.
Justice Kennedy, I want to go back to -- to one question you had asked earlier about the posture, and I just want to reiterate.
You, very clearly, said, when the government was saying, well, we didn't have a good reason to bring this to the Court, and that's why we didn't, I think your question recognized that the government had very good reasons.
But -- but in addition, it's not really important, when you have a final judgment, why a party chooses not to try to take the last step of appeal on a final judgment, and that's the United States v. Munsingwear case.
The government chose not to make that step.
The judgment was final, and there, certainly, is no basis for this Court to reopen the issues about whether Mr. Buono had standing in the first instance.
Justice Samuel Alito: Well, wasn't -- isn't this very different from the situation in Toledo Steel because -- Scale, I'm sorry -- because, if the merits issue that was before the Ninth Circuit was, if not technically moot, nearly moot, by the time they reached it, because of the passage of the new statute.
This wasn't -- they said it's not moot because this is simply the voluntary cessation of conduct that's been held to be unlawful, but that is typically applied in the situation where there is a legitimate fear that the -- the party that has been held to be violating the Constitution may simply return to its bad old ways, once the litigation is over.
But, here, you have the intervening enactment of a statute by the Constitution -- by the Congress of the United States, and I think it would be quite far-fetched to presume that Congress is simply going to repeal the statute and go back to the way things were, once the litigation is over.
So you have a merits issue that's not -- if technically moot, nearly moot.
The real merits issue in the case is -- is expressly not decided by the Ninth Circuit.
They say, take that back to the district court.
And you say that the standing issue goes away because the government didn't appeal the standing issue at a time when the real merits issue in the case had not been decided.
Mr. Eliasberg: Well, two points, if I may, Justice Alito.
First, the first reason that the Ninth Circuit gave for why the case wasn't moot was not voluntary cessation.
The government conceded the land transfer could take up to two years to effectuate, so in the Ninth Circuit, that this case is far from moot.
Two years is more than enough time to file the government to file the petition for certiorari and had a ruling, both on the merits of the land on -- the cross on government property, but more important, as a number of Justices had pointed out, the question of standing to bring an Establishment Clause case, the government always have an interest in saying, this case should never have been brought.
We never should had have had a judgment entered against us.
For the government to say, we didn't really care at that point because, two years from now, the transfer might be effectuated is not basis for them to argue that there was no final judgment and no reason for us to appeal.
Justice Ruth Bader Ginsburg: I think General Kagan recognized that there isn't an example of a final injunction, where, after it's final as it can be, you can come back and say, but, now, I want to reargue the standing question that's already been determined.
But there was something that I did want to ask you about, Judge O'Scanlon's opinion.
He said, if -- if you prevail and you are right, what happens in Arlington Cemetery, where there's the Argonne Cross Memorial and the Canadian Cross of Sacrifice, both right here in Arlington, what happens to them?
Mr. Eliasberg: Going back, Justice Ginsburg, to the merits on the earlier question about a cross on government property, I believe that the Argonne Cross in the national -- in memorial cemetery is extremely different.
There are, in the national cemeteries, the -- the VA offers, to veterans and their family, a choice of putting up 39 different emblems and beliefs on their tombstones.
In Arlington, there is a cross that is surrounded by a sea of tombstones with symbols of the faith of all of the different service members.
In that context, I don't think anyone would perceive that the government was favoring one particular religion because of the variety of choices and religious symbols expressed there.
That's very different from a stand-alone cross of one religious symbol that is not surrounded by any other context, other than--
Justice Antonin Scalia: Has the government ever turned down -- let's say the Jewish war veterans request to put up a war memorial on--
Mr. Eliasberg: --They did.
There was a request made for -- to put up a memorial on the site, and the government said no and said, our regulations forbid it.
Justice Antonin Scalia: --I am talking about -- on this site?
Mr. Eliasberg: Yes.
Justice Antonin Scalia: You know, well, I'm not talking about this site, where there already was a memorial, but suppose the -- what I'm getting at is I don't agree with you, that -- that every time the government allows any religious symbol to be erected, it has to allow all religious symbols to be erected at the same place, so long as it is -- it is not discriminatory in -- in accepting or rejecting requests to erect religious symbols in different places.
I don't see why the government is convicted of being discriminatory.
Mr. Eliasberg: I think the context here is what has the government done with respect to national memorials.
The only two national memorials that are stand-alone religious symbols are of one particular religious denomination, and that's Christianity.
Justice Antonin Scalia: But -- but you don't -- and they -- were both of them proposed by a private group, such as the Veterans of Foreign Wars?
Mr. Eliasberg: Well, it's Congress -- I don't know that the Veterans of Foreign Wars ever proposed that this be a national memorial.
Congress designated it as one.
Justice Antonin Scalia: Well, but it was erected by the Veterans of Foreign Wars.
I mean, do you know of any instance in which Jewish war veterans or if there is an organization of Muslim war veterans, requested to erect a memorial on public land, it was turned down?
Mr. Eliasberg: As I said before--
Justice Antonin Scalia: I just don't see why they all have to be on the same piece of land, in -- in order for the government to be impartial.
Mr. Eliasberg: --I'm not saying that in -- in -- that, in every circumstance, the government has to have lots of different symbols, but what the government has done here--
Justice Antonin Scalia: Well, I think you are saying that, and you are saying that this has to be a public forum.
In fact, I'm not even sure your -- your brief would limit it to religious symbols.
You say it has to be an open forum.
Mr. Eliasberg: --Well, Justice Scalia, if I make one prefatory point, the government didn't bring to this Court the merits of the question of whether the cross was permissible on government property.
There is a final judgment set in this circumstance.
In this context, it is not.
So that question is not properly before us, but context matters, and I do think, in other circumstances, there may be religious symbols.
There may be a myriad of religious symbols and the context of the situation will matter.
But I think if, in Arlington, for example -- with respect to Justice Ginsburg's question.
If, for example, a foreign government -- let's take the Canadian Cross of Sacrifice, which the government has put in its brief, was donated by a foreign government to honor people -- Americans who fought for Canada and the British Empire, in I believe it was World War I, if the State of Israel made a similar request to the United States, we would like to honor the Jews who fought in Operation Iraqi Freedom because we believe that that was an important defense of the State of Israel, and the United States said, no, we are not interested, I think that that would create a quite significant constitutional violation -- or constitutional question, but it's not the case in front of us.
Justice John Paul Stevens: May I ask a different question, just based on your understanding of all these monuments?
Are there any other federal monuments that contained crosses, other than those associated with the cemeteries?
Mr. Eliasberg: The one national memorial that I am aware of that has a cross, it is of Father Marquette, who was a significant historical figure.
It is not a stand-alone cross.
It is Father Marquette surrounded by a number of various objects that show his role as a historical figure, exploring the middle west, and he is holding a cross.
But, again, I think -- I agree with General Kagan that, if we honored Martin Luther King, who was a priest, or we honored -- we did something with the Old North Church which had significant historical significance, that would create a very different issue than simply a stand-alone cross, where, when the National Park Service asked its own historian to determine whether it had historical value necessary to bring it within the National Register of Historic Places, the Park Service's own historian said, no, it did not.
Chief Justice John G. Roberts: Counsel, this probably doesn't have anything to do with anything, but I'm just kind of curious, why is this cross put up -- you know, in the middle of nowhere?
Mr. Eliasberg: Because the man who originally put up the cross -- not this one, because it has been replaced a number of times, but the man who put up this particular cross, I believe was a homesteader in the area when the land was owned by the Bureau of Land Management, and I believe was a miner on the land.
I hope that is correct historically.
I believe it is.
Chief Justice John G. Roberts: Thank you.
General, you have 2 minutes.
REBUTTAL ARGUMENT OF GEN. ELENA KAGAN ON BEHALF OF THE PETITIONERS
Ms Kagan: Thank you, Mr. Chief Justice.
To pick up right there, this stand-alone cross was erected as a World War I memorial by veterans of World War I who had gone to the desert in California to recuperate and to restore their lives.
And it was that situation that the -- that the Congress was presented with, was when the Ninth Circuit ruled and said that this memorial was unconstitutional, Congress had a choice.
And the choice was to take down that memorial, which meant an enormous amount to veterans in the community, or to completely dissociate the government from that memorial.
And what Congress did was to completely dissociate the government from that memorial while allowing some war memorial to stand.
Justice John Paul Stevens: How can you say that when there's a reversionary interest?
How can you say it's completely dissociated?
There is a reversionary interest if they don't maintain the cross, which is the monument, it goes back to the government.
Ms Kagan: Justice Stevens, with respect, the reversionary interest says that the holder, the VFW, has to maintain a war memorial.
It does not--
Justice John Paul Stevens: Yes, but the particular memorial described by Congress was this cross.
Ms Kagan: --No, the reversionary interest simply says: A war memorial.
It does not have to be this war memorial.
Justice John Paul Stevens: Yes, but then it doesn't -- I don't think it's fair to interpret Congress's interest to being and preserving this memorial.
Ms Kagan: To the contrary, Justice Stevens.
When Congress wanted to say 2002 act.
Justice John Paul Stevens: Right.
Ms Kagan: In the 2004 act, it said something very different.
That was after the injunction had issued, so it was a completely different set of circumstances.
Congress understood that an injunction against this war memorial had issued.
Congress said: We are going to give this back to the VFW, but it's going to be the VFW's choice now as to what to do with it, consistent with it being some kind of war memorial.
A reversionary interest of a kind that Congress often uses to -- when it transfers land.
Congress -- it's a completely--
Justice John Paul Stevens: Do you think anyone thought there is the remotest possibility they would put up a different memorial?
Ms Kagan: --I think it's left to the VFW, and it's entirely the VFW's choice.
So if tomorrow or ten years from now or 50 years from now the VFW decides, along with Respondents, that a cross is an inappropriate war memorial, then they can take down that war memorial.
It's no longer the government's message.
Justice John Paul Stevens: How can they say it's an inappropriate war memorial when Congress has designated the national memorial as, quote, "the five-foot-tall white cross" and so forth and so on?
That is what is the memorial.
Ms Kagan: But there is no -- there is no prohibition on the VFW taking down this memorial.
We will just have one fewer national memorials.
Justice John Paul Stevens: Do you really think there is any possibility that would happen?
Ms Kagan: --Again, I think it is entirely up to the VFW.
Justice John Paul Stevens: That is not my question.
Ms Kagan: I don't know, because I am not the VFW.
It is up to the VFW as to what happens to this war memorial.
That's also true of the plaque, that the plaque could -- the VFW could take down the plaque once the -- the VFW gains title to this property.
So what the government has done here -- and Justice Stevens, I don't want to -- of course, you are right that Congress started out thinking they--
Justice John Paul Stevens: They not only started it out, but they authorized the use of $10,000 in money in order to replace the very cross they had designated as a memorial.
Ms Kagan: --Justice Stevens, you are, of course, right that Congress thought at the beginning, prior to the injunction, that this war memorial should not be taken down, that there was an attachment to it in the local community, and that it was -- that it should be retained.
Not an unnatural thing for Congress to want, to preserve war memorials.
When the injunction issued and when the court found that the -- when the Congress found that the courts had declared this display of this memorial unconstitutional, Congress said: How can we preserve this -- preserve a war memorial, very possibly this war memorial?
How can we preserve a war memorial but have it not be our choice?
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice Mr. Chief Justice Robert Jr.: Justice Kennedy has the announcement this morning in case 08-472, Salazar versus Buono.
Justice Anthony Kennedy: The Mojave National Preserves much of that in the South and Southwestern California comprises about 1.6 million acres within the Mojave Desert.
To give some idea of the desert size, it exceeds the combined area of the nation's five smallest states, just over 90% of the land of the preserve is federally owned.
The National Park Service, a division of the Department of Interior administrators of the preserve.
Sunrise Rock is a granite outcropping located within the preserve.
In 1934, members of the Veterans of Foreign Wars mounted a Latin cross on the Rock as a memorial to soldiers who died in World War I.
The cross has been replaced or repaired at various times over the years by private parties and across now consists of 4 inch diameter metal pipes that are painted white so the cross is white.
The vertical bar of the cross is less than 8 feet tall, the cross cannot be seen from the nearest highway but it is visible from a nearby access road.
The court has been asked to consider a challenge not to the first placement of the cross by the VFW, words continued presence on federal land but to a federal statute, a congressional enactment that would transfer the land on which the cross stands to a private party.
The District Court enjoined the government from implementing the statute.
The Court of Appeals affirmed and we now reverse and remand for further proceedings.
Almost 7 decades after the cross was first constructed, a challenge to its presence was bought by Frank Buono.
He is the respondent here.
He has claimed that the cross’s presence on federal land violates the establishment clause of the First Amendment.
He sought an injunction requiring the government to remove the cross.
The procedural background involved is lengthy, involved two District Court decisions and two Court of Appeals decisions before the case came here.
In the first round of litigation, the District Court found that the presence of the cross was unconstitutional because it conveyed an impression of governmental endorsement of religion.
In 2002, the Court granted an injunction of forbidding the government from maintaining the cross and its location and preserve, the Court of Appeals affirmed the judgment of the District Court.
And it affirmed it both on the issue of respondents standing to bring the suit and on the merits of its constitutional challenge.
The government did not seek review of the decision of Court of Appeals, so that decision became final.
While the government's appeal was pending Congress passed a statute and the statute directed the Secretary of the Interior to transfer the cross in the land on which it stands to the Veterans of Foreign Wars, VFW, in exchange for privately owned land elsewhere in the Preserve and this is the so-called Land Transfer Statute and it presents the primary issue to be decided here.
In the second round, respondent then returned to the District Court, and that second round of litigation began.
This time the respondent sought injunctive relief against the land transfer and land transfer statute.
The District Court granted his request; it concluded that the land transfer statute was an attempt to evade the earlier injunction, the 2002 injunction.
The Court of Appeals again affirmed, we granted the government's petition for review.
Since this Court did not renew the first Court of Appeals decisions, we do not rule on respondents standing to bring the first suit.
Now, that’s a final judgment.
We now must decide whether respondent has standing to seek release in the second phase of litigation.
We conclude that respondent does have standing in the second suit.
He established his entitlement to the 2002 injunction in the first stages of the litigation, that ruling became final and he then sought to prevent the government from frustrating or avoiding or evading the 2002 injunction.
His interest in doing so was sufficiently personal and concrete to support his standing.
The next question is whether the District Court was correct to issue an injunction against the land transfer statute.
The District Court granted this relief on the premise that it was necessary to protect the respondent’s rights under the 2002 injunction but the District Court committed reversible errors in our view in reaching this conclusion.
First the District Court did not consider the substantial change in circumstances brought about by the land transfer statute.
The District Court dismissed Congress’s motives in passing the statute as illicit.
As a result, it took insufficient account of the context in which the statute was enacted and the reasons for its passage.
Private parties placed across on federal land.
They do not do so, as an attempt to place the government's approval behind a particular creed.
Their intent was to honor fallen soldiers.
The cross stood for nearly 7 decades before the statute was enacted by which time the cross and the cause it commemorated had become entwined in the public's consciousness.
The 2002 injunction thus presented the government with the 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 seem as honoring.
Dealing neither alternative satisfactory, Congress enacted the land transfer statute.
The statute embodied the legislative judgment that this dispute is best resolved through a framework and policy of accommodation.
The statute should not have been dismissed as an invasion for bought about a change of law in a congressional statement of policy applicable to this case.
The District Court also erred by focusing on the religious aspects of the cross, divorced from its background and context.
The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.
Across by the side of a public highway marking for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.
The cross is a religious symbol but it is also a symbol often used to honor and respect those who have major work and noble contributions on behalf of this nation and its people.
This cross is like so many others that mark the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.
The District Court did not consider and so gave insufficient weight to these aspects of the cross.
Finally the District Court erred by striking down the land transfer statute without considering whether other less severe alternatives existed.
Our respect for a coordinate branch of government for business to interfere with an act of Congress except upon a clear showing that relief is necessary.
It is Congress’s judgment that the land transfer is a proper accommodation of competing interests but even if the District Court decided otherwise, it was incumbent upon the court to consider alternative forms of relief that did not involve invalidating the statute.
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings.
The Chief Justice joins us this opinion in full and Justice Alito joins in part.
The Chief Justice has filed a concurring opinion; Justice Alito has filed an opinion concurring in part and in the judgment.
Justice Scalia has filed an opinion concurring in the judgment which Justice Thomas joins.
Justice Stevens has filed a dissenting opinion which Justices Ginsburg and Sotomayor joined.
Justice Breyer has filed a dissenting opinion.