Salazar v. Buono
The Supreme Court threw out a lower court's order blocking Congress from transferring a small patch of federal land holding a World War I memorial cross to a veterans' group in exchange for other land, ruling that the trial judge had not properly weighed Congress's attempt to resolve the dispute.
The plurality sent the case back to the district court to take a fresh look at whether the land swap, rather than outright removal of the cross, could satisfy the Constitution's ban on government religious endorsement, while four justices in two separate dissents argued the transfer should have been blocked outright or the case dismissed.
“Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality.”
Explaining why courts should defer to Congress's chosen solution absent a clear constitutional violation.
How it got here: A federal trial court and the Ninth Circuit ruled the cross's presence on federal land was unconstitutional and later blocked Congress's land-transfer law; the government asked the Supreme Court to review that second ruling.
The Case in Depth
What happened
In 1934, veterans placed a large white cross on a desert rock outcropping in what is now the Mojave National Preserve to honor soldiers who died in World War I. A former park ranger who visited the preserve regularly sued, arguing the cross's presence on federal land violated the separation of church and state. After courts ordered the cross removed, Congress instead passed a law transferring the small parcel of land under the cross to a veterans group in exchange for other land nearby.
The question before the Court
Could a federal judge block Congress's plan to transfer the land under a war-memorial cross to a veterans group, after a court had already ordered the cross removed from public land?
Why it matters
The decision affects how the government can settle Establishment Clause disputes over religious symbols on public land without necessarily tearing them down. It signals that transferring land to a private owner can be an acceptable compromise, giving other governments a template for handling similar memorial and monument controversies rather than facing all-or-nothing removal orders.
What changes now
The case returns to the district court, which must reexamine whether continuing to block the land transfer is still necessary in light of Congress's law and the changed legal landscape. The Supreme Court did not resolve whether the transfer itself would violate the Establishment Clause — that question, along with whatever remedy might be appropriate, remains open for the lower courts to decide on remand.
What this does not decide
The plurality opinion does not decide whether the land-transfer law itself violates the Establishment Clause or whether the cross's continued display after the transfer would be unconstitutional. It only holds that the district court used the wrong analysis in blocking the transfer and must reconsider the question on remand.
Concurrences and dissents
Concurrence in part — Justice Alito
Justice Alito agreed with nearly everything in the plurality opinion but would have gone further and decided immediately, rather than remanding, that the land transfer does not violate the injunction or the Establishment Clause. He argued the record was fully developed and that Congress's land-swap solution reasonably accommodated competing concerns without endorsing religion or acting from an improper purpose.
Concurrence — Justice Roberts
Chief Justice Roberts wrote separately to reject the idea that the government needed to first tear down the cross and let the veterans group immediately re-erect it before selling the land, calling that an empty formality that made no practical difference to the outcome.
Concurrence — Justice Scalia
Justice Scalia, joined by Justice Thomas, agreed the injunction against the transfer should be reversed but for a different reason: he argued the plaintiff never had standing to seek this broader relief because blocking the transfer sought to expand the original injunction rather than merely enforce it, and the plaintiff had shown no concrete injury from the transfer itself.
Dissent — Justice Stevens
“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.”Stevens explaining why he believed the cross could not be made secular by transferring the land.
Justice Stevens, joined by Justices Ginsburg and Sotomayor, argued the land transfer would not cure the constitutional violation because a reasonable observer would still see continued government endorsement of the cross, given its history, its designation as a national memorial, and Congress's clear purpose of keeping the cross standing. He would have upheld the district court's order blocking the transfer entirely rather than remanding.
Dissent — Justice Breyer
Justice Breyer dissented on narrower grounds, arguing the Court did not need to reach any Establishment Clause question at all because ordinary rules governing how courts interpret their own injunctions were enough to support the district court's reasonable conclusion that the transfer violated the original order. He would have affirmed the Ninth Circuit rather than remanding.
How the Court got there
The legal reasoning, step by step
- The plurality explained that a court may only keep an injunction (a court order requiring or forbidding certain conduct) in place if it continually weighs all the circumstances bearing on the need for that order going forward, rather than freezing the analysis at the time the order was first issued.
- The land-transfer law was a major change in circumstances that the trial court brushed aside by assuming Congress acted for an illegitimate reason, without seriously examining why Congress chose a land swap instead of leaving the cross up or tearing it down.
- Because the original order was based only on the idea that a reasonable observer would see the cross on federal land as government endorsement of religion, any new order extending that injunction needed to rest on that same reasoning — not on a new theory that Congress had a hidden, improper motive.
- The trial court never asked whether a reasonable observer, aware that the cross would now sit on privately owned land, would still think the government was endorsing religion, and it did not consider whether the reasonable-observer test even fits objects on private property.
- Given the deference owed to Congress's efforts to resolve a difficult dispute through compromise, and the preference for narrower fixes over invalidating an entire law, the plurality concluded the trial court needed to redo its analysis with these factors in mind rather than simply banning the transfer outright.