Salazar v. Buono: the failed landmark case and its illustration of the two sides of plurality opinions.

• Author: Bass, Daniel Joseph

A simple Latin cross, (1) placed on an outcropping of rock in the Mojave Desert, became the center of much controversy in 1999. (2) The cross had stood since 1934 (3) when the Veterans of Foreign Wars (VFW) placed it to memorialize the deaths of soldiers in World War I. (4) The land was part of the Mojave National Preserve, which contains 1.6 million acres of land, including privately owned portions (5) and portions which belong to the State of California. (6) This mismatch of private and state ownership is sporadically positioned throughout the otherwise federally owned preserve. (7) Though the cross was located on a federal portion of the land, (8) its presence had gone unquestioned in terms of legality, despite frequent campers in the area and annual Easter Sunrise services that occurred nearby since 1935. (9) However, when permission was denied regarding the placement of a Buddhist stupa (10) near the cross, the cross's long presence in the desert was finally called into question. (11) A flurry of letters (12) between the National Park Service (NPS), (13) the American Civil Liberties Union (ACLU), and private parties (14) quickly made it apparent that a resolution would not occur outside of the legal system. (15) What followed was a legal suit by a long-term employee of the park to have the cross removed from the government's land in the Mojave National Preserve. (16) This suit resulted in a series of legal actions that led all the way to certiorari before the Supreme Court. (17)

Salazar v. Buono (18) represented a focal point in religious display cases, not only looking for a new remedial answer to unlawful religious displays, (19) but also offering a new look at older holdings. (20) Salazar v. Buono and cases preceding it offered an opportunity for the Supreme Court to revisit their previous religious symbol display cases, (21) and led many academics to believe a clarification of Establishment Clause jurisprudence as a possible holding in the case. (22) However, as early as the oral arguments, it became immediately apparent that the case was not likely to be the landmark decision or drastic departure the case could have been. (23) As such, the case seemingly became just another in a long stream of plurality opinions written by the Supreme Court in more recent years. (24) But, the decision was not wholly without substantive value itself, (25) offering an opportunity to explore the judicial value of plurality decisions generally. (26) Salazar v. Buono can still offer great insight into the future of religious display cases. (27) Moreover, the multiple opinions authored by the Supreme Court Justices offer clues into the perspectives of those Justices sitting on the Court at the time the case was decided. (28)

Part I of this Note will provide an explanation regarding procedural intricacies of the first four actions that involved Buono's dispute and the Latin cross as they moved through the court system. Part I will also discuss various statutes enacted by Congress to counter the holdings of the aforementioned court decisions. Part II will examine the case of Salazar v. Buono as it was heard by the Supreme Court and the six opinions that make up the plurality ruling of the nine Justices. Part III will provide an indepth look at the Justices' reasoning in the Supreme Court's multiple opinions comprising the plurality decision in Salazar v. Buono. Furthermore, Part III will also look at the effect Justice Stevens had on the Supreme Court's jurisprudence--particularly with regard to the Salazar v. Buono decision--and discuss how his retirement will affect the legacy left by his final words on the Establishment Clause. Part IV will outline the various positive and negative aspects of plurality opinions generally, examining applicable academic commentary on the subject. Finally, Part V will explain why the decision is a good example of the positive aspects of plurality opinions and manages to avoid the negative aspects through the Court's remand to the lower court to further discuss the case's major issues.

1. PROCEDURAL HISTORY OF SALAZAR V. BUONO

   When Buono first brought suit in the Central District of California (29) two relevant questions were presented for decision. First, did Buono have standing to sue? (30) Second, did the Latin cross's presence on federal land violate the Establishment Clause? (31) The district court found that Buono had standing to challenge of the constitutionality of the cross's presence. (32) Furthermore, the court determined that the cross was "exclusively a Christian symbol." (33) As such, the cross's presence on federal land was an unacceptable endorsement of religion and unconstitutional as a matter of law. (34) As a resolution, the district court granted Buono's request for a remedial injunction, which would prohibit the cross's display in the park. (35) The government immediately appealed this decision, but while the appeal was pending, Congress enacted the Department of Defense Appropriations Act of 2004 (DDAA). (36) The DDAA transferred the ownership of one acre of federal land surrounding the cross to the VFW. (37) In return, the government received similar land elsewhere on the reserve from a private party, plus the difference in fair market values of the plots. (38) However, the relevant portion of the act contained a reversion clause, which would return the one acre surrounding the cross to federal ownership if the VFW failed to maintain the cross as a "war memorial." (39)

   When the government appealed Buono I it found little help from the justices of the Ninth Circuit. (40) The court of appeals affirmed the district court's judgment as to standing to sue, finding that Buono had received "injury in fact" by the presence of the cross on the federal property, which he could not freely enjoy the use of. (41) Furthermore, the Ninth Circuit also found for Buono on the merits of the supposed Establishment Clause violation, holding that the presence of the cross was a demonstration of the government's preference of one faith over another--namely Christianity over Buddhism--when the Buddhist stupa (42) was denied a position similar to the cross. (43) However, besides a brief discussion of whether the case was moot in light of Congress's recent passage of the DDAA, the court declined to address the substantive remedial issue of the land transfer. (44) As such, the question of transferring the land as a potential and proper remedy to Buono's legal injury (45) and the DDAA's constitutionality was postponed for a later time. (46) The government, however, failed to remove the cross (47) and the land transfer took center stage when the case was once again brought up in district court.

   The government's belief that the land transfer preempted a need to comply with the original injunction pushed Buono to once again bring suit. (48) The case was once again brought in district court, with Buono seeking enforcement of the original injunction or any necessary modification to halt the land transfer and the continued display of the cross. (49) The government argued that the decision in this case should have been postponed until the land transfer actually took place--a process that could conceivably take several years--but found no agreement from the judge hearing the case. (50) Instead, the court largely supported the previous holdings of Buono I and Buono II when it decided to address the 2002 injunction. (51) The court interpreted how the original injunction interacted with the land transfer statute. (52) Namely, the court denied Buono's motion to amend the prior injunction, believing it to be unnecessary, (53) but held that the previous injunction already permanently enjoined the government from implementing the land transfer, abrogating any need to amend its actual language. (54) Once again, the district court had granted relief for Buono, (55) but the government would not end its arguments there, again appealing the decision of Buono III.

   The government, once again, appealed to the Ninth Circuit Court of Appeals (56) which upheld the district court's ruling on all issues. (57) The entire panel also voted to deny rehearing of the case and deny hearing the case en banc, precluding all further petitions for rehearing. (58) However, a small group of dissenters issued an opinion as to their belief that the case should be held en banc, particularly due to a conflict with Seventh Circuit precedent (59) and the relative novelty of the remedial land transfer issue. (60) The dissenting judges also voiced their disagreement as to the merits reached by the Buono IV decision; namely, they believed that the monument also served a secular purpose. (61) With rehearing denied, the government once again appealed the decision to a higher court. This time, the federal government's case would be heard before the nine Justices of the Supreme Court of the United States.

2. SALAZAR V. BUONO'S MULTIPLE OPINIONS

   The government fought the Ninth Circuit's ruling all the way to the Supreme Court. (62) However, when the Supreme Court heard the case it quickly became apparent that the Court's sitting Justices were divided on how to rule in the case. (63) Differences in the Supreme Court's idea of the case's actual focus produced several contentions and a plurality decision, with six Justices writing separate opinions--many of which discussed different issues. (64) With these multiple issues and the many separate opinions that discuss them the decision can be somewhat confusing. However, a careful analysis reveals that the Justices were in agreement on some issues; these issues simply were not the ones expected to be determined by the Supreme Court when it heard and decided the case. (65)

   The Supreme Court's lead plurality opinion was written by Justice Kennedy, joined by Justice Roberts in whole and by Justice Alito in part. (66) After an overview of the case and a discussion of the issue of standing...