Adam Linkner, How Salazar v. Buono Synthesizes the Supreme Court?s Establishment Clause Precedent Into a Single Test

• Citation: Vol. 25 No. 1
• Publication year: 2010

HOW SALAZAR V. BUONO SYNTHESIZES THE SUPREME COURT’S ESTABLISHMENT CLAUSE PRECEDENT INTO A SINGLE TEST

Adam Linkner*

INTRODUCTION

Atop Sunrise Rock, a large Latin cross1 casts a shadow over the Mojave National Preserve in Southern California.2 This cross seems oddly out of place. It is not located in a church. It is not located in a museum. It is located in a national preserve that encompasses 1.6 million acres.3 There is no fence surrounding the cross. There is no sign explaining why it is there. No other religious or cultural markers are in the vicinity. The cross sits alone in the middle of this vast public land. Does its presence on public land constitute a violation of the First Amendment Establishment Clause?4 Would the answer change if the tiny parcel of land under the cross were transferred to a private party? If so, would the reasons why the government transferred the land

matter?

The Supreme Court faced these facts in Salazar v. Buono.5 The cross in Salazar was originally erected in 1934 by a veteran’s organization called the Veterans of Foreign Wars (“VFW”).6 Frank Buono, a former park ranger who

* J.D., Emory University School of Law (2010); M.B.A., Emory University Goizueta Business School

(2010); B.B.A., University of Michigan Business School. Thanks to Professor John Witte, Jr., whose help and insight were invaluable to the development of this Article.

1. A Latin cross “has two arms, one horizontal and one vertical, at right angles to each other, with the

   horizontal arm being shorter than the vertical arm.” Buono v. Norton (Buono I), 212 F. Supp. 2d 1202, 1205

   (C.D. Cal. 2002).

2. Salazar v. Buono, 130 S. Ct. 1803, 1811 (2010). Although the cross has recently been stolen, this Article assumes the cross is still present. David Kelly, Mojave Desert Cross, Focus of Long Legal Battle, is Stolen, L.A. TIMES (May 12, 2010), http://articles.latimes.com/2010/may/12/local/la-me-mojave-cross-

   20100512.

3. Mojave National Preserve, U.S. NAT’L PARK SERV., http://www.nps.gov/moja/index.htm (last visited Mar. 18, 2011).

4. The First Amendment Establishment Clause states: “Congress shall make no law respecting an establishment of religion . . . .” U.S. CONST. amend. I. The First Amendment also applies to the states through the Fourteenth Amendment. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000) (stating that the

   First Amendment applies to the states).

5. Salazar, 130 S. Ct. at 1803.

6 Id. at 1811.

was offended by the cross’s presence on federal land, challenged its Constitutionality.7 The Supreme Court case of Salazar was the culmination of four previous federal district court and court of appeals rulings on the cross— Buono I,8 Buono II,9 Buono III,10 and Buono IV11 (collectively, the “Buono cases”). In Buono I, the district court found that the cross’s location on federal land violated the Establishment Clause and granted injunctive relief against the government.12 Following Buono I, Congress passed legislation to transfer the small piece of land under the cross to the VFW (“land-transfer statute”).13 Then in Buono II, the Ninth Circuit affirmed Buono I, although it chose not to address the Constitutionality of the land-transfer statute.14 Buono then challenged the transfer of the land containing the cross and, in Buono III, the district court prohibited the transfer on the grounds that it did not, and would not, cure the government’s Establishment Clause violation.15 The Ninth Circuit affirmed in Buono IV.16 The U.S. Secretary of the Interior, Ken Salazar, appealed to the U.S. Supreme Court challenging both Buono’s standing to bring the case as a now retired national park employee and the district court’s injunction and finding of continued unconstitutionality despite the land sale.17

The Supreme Court in Salazar reversed Buono IV and remanded the case.18 In a jumbled set of seven separate opinions, the plurality, led by Justice Kennedy, held that although Buono had standing, the district court did not employ the proper Establishment Clause analysis and improperly extended its

first injunction against the cross to reach the land-sale statute as well.19 This

Article argues that, however convoluted the multiple opinions in Salazar appear on first reading, they reveal that the Justices’ opinions together stand for a single framework for addressing the Constitutionality of religious objects on public land20—what this Article calls the “inside/outside” test. Pursuant to the inside/outside test, a court must analyze the government’s actions from

7 Id. at 1812.

8 Buono I, 212 F. Supp. 2d 1202, 1205 (C.D. Cal. 2002).

1. Buono v. Norton (Buono II), 371 F.3d 543 (9th Cir. 2004).

2. Buono v. Norton (Buono III), 364 F. Supp. 2d 1175 (C.D. Cal. 2005).

3. Buono v. Kempthorne (Buono IV), 527 F.3d 758, 768 (9th Cir. 2008).

4. Id.

13 Salazar v. Buono, 130 S. Ct. 1803, 1813 (2010).

1. Buono II, 371 F.3d at 543.

2. Buono IV, 527 F.3d at 768.

3. Id.

4. Salazar, 130 S. Ct. at 1803.

5. Id. at 1808.

6. See infra Part I.B.1 (examining Justice Kennedy’s opinion in Salazar).

7. See Salazar, 130 S. Ct. at 1819–20.

   both an inside and an outside perspective. The inside perspective asks a court to determine if the predominant purpose or intent of a government action is to promote religion. The outside perspective asks a court to look at a disputed action from an outsider’s perspective to determine whether the effect of the government’s conduct appears to endorse religion—regardless of actual intent.

   
   

   After distilling this test from the Salazar opinions and the precedents on which they call, this Article argues that the inside/outside test is not only consistent with the apparent hodgepodge of Establishment Clause cases since the Supreme Court’s seminal, multi-pronged approach in Lemon v.

   Kurtzman,21 but the inside/outside test actually synthesizes that precedent into

   a single test. Finally, this Article applies the inside/outside test to the facts of Salazar as the district court is required to do on remand and concludes that the district court should strike down the land-sale statute because it violates the Establishment Clause.

   
   

   1. DEVELOPING THE INSIDE/OUTSIDE TEST THROUGH AN ANALYSIS OF

      SALAZAR V. BUONO

      
      

      Salazar is the most recent Supreme Court case addressing the issue of religious objects on public land. This Part first details the history of the Buono cases that led up to Salazar. Then it analyzes the seven opinions issued by the Court in Salazar. Finally, it argues that all of the opinions that deal with the merits of the Establishment Clause actually agree on applying a single framework, which this Article calls the inside/outside test.

      
      

      1. The Buono Cases

         
         

         The cross at issue in Salazar is “between five and eight feet tall” and is permanently located on Sunrise Rock—a prominent location within the Mojave National Preserve.22 It was originally erected with private funds by the VFW in 1934 as a memorial to those who died in World War I.23 The cross has since been replaced several times by private parties, although a plaque that was originally next to it stating its purpose has not been replaced; the cross now stands alone with nothing to indicate its purpose.24 Although veterans have gathered at the cross to celebrate Easter sunrise services since 1935, there is no

         
         

8. Lemon v. Kurtzman, 403 U.S. 602 (1971).

22 Buono I, 212 F. Supp. 2d 1202, 1205 (C.D. Cal. 2002).

23 Id.

evidence that veterans, or any other persons, have gathered at the cross for any type of veterans memorial services.25

The public controversy surrounding the cross began in 1999 when the National Park Service denied a request to erect a Buddhist shrine near the cross.26 Subsequently, the American Civil Liberties Union threatened legal action unless the cross was removed.27 After a National Park Service evaluation concluded that the cross did not qualify for the National Register of Historic Places, the Park Service decided to remove it despite significant public opposition.28

In response to the Park Service’s decision to remove the cross, a U.S. Congressman from California, Jerry Lewis, helped pass an appropriations bill in 2000, which prohibited using federal funds to remove the cross (“Anti- Removal Act”).29 The next year, Congress passed another appropriations bill,

which designated the cross as a national World War I memorial and provided

$10,000 to install a memorial plaque next to the cross (“Memorial Act”).30 This bill made the cross the only national World War I memorial in the

nation.31 Congress passed another defense appropriations bill in 2002 that included a section prohibiting the dismantling of the cross.32

1. Salazar, 130 S. Ct. at 1838 (Stevens, J., dissenting).

2. Buono I, 212 F. Supp. 2d at 1206.

3. Id.

4. Id.

5. Valerie Richardson, Mojave Cross Can Stay on Display in Calif., WASH. TIMES (Apr. 29, 2010, 4:00 AM), http://www.washingtontimes.com/news/2010/apr/29/mojave-cross-can-stay-on-display-in-a-preserve/ print. “None of the funds in this or any other Act may be used . . . to remove the five-foot-tall white cross

   located within the boundary of the Mojave National Preserve . . . .” Consolidated Appropriations Act of 2001, Pub. L. No. 106-554, § 133, 114 Stat. 2763A–230 (2000).

6. Department of Defense Appropriations Act of 2002, Pub. L. No. 107-117, §§ 8137(a), 8137(c), 115

   Stat. 2278–79 (2002).

   
   

   The five-foot-tall white cross . . . is hereby designated as a national memorial commemorating United States participation in World War I and honoring the American veterans of that war.

   . . . .

   . . . The Secretary of the Interior shall use not more than $10,000 . . . to acquire a replica of the original memorial plaque . . . .

   Id.

   
   

7. Salazar v. Buono, 130 S. Ct. 1803, 1842 (2010) (Stevens, J., dissenting).

8. Buono IV, 527 F.3d 758, 768 (9th Cir. 2008). “Congress passed a defense appropriations bill that

   included a provision barring the use of federal funds ‘to dismantle national memorials commemorating United States participation in World War I.’” Id. (quoting Department of Defense Appropriations Act of 2003, Pub. L. No. 107-248, § 8065(b), 116 Stat. 1151 (2002)).

   Meanwhile, Buono, a...