Salazar v. Buono: The Cross Between Endorsement and History

The striking image of a white cross on stark rock, silhouetted against the desert sky, now symbolizes not only Christianity and, arguably, World War I military sacrifice, but also the equally dramatic, prolonged saga of the Salazar v. Buono litigation. The photos invoke the most recent Supreme Court battle in the legal and cultural war to define religion’s role in the public square. Competing approaches stress either preserving history or avoiding government endorsement of religion; this brief article analyzes a potential new synthesis suggested by Buono. The original cross war memorial was erected in 1934 by a local group of WWI veterans in the Mojave Desert, an isolated area of federally-owned land which, 60 years later, became a National Preserve. When Frank Buono brought an Establishment Clause suit over the display of the large cross on federal land, the district court held that it conveyed the appearance of a government endorsement of Christianity, and thus enjoined its display. While the decision was pending before the district court, and in the aftermath of 9/11, Congress designated the cross a National Memorial. Next, rather than remove the cross, while the first Ninth Circuit appeal was pending, Congress passed a land swap bill to transfer the underlying property to the Veterans of Foreign Wars (VFW), so long as the property continued to be used as a war memorial. The Ninth Circuit affirmed, without resolving the issue of whether the land transfer would itself be constitutional or cure the Establishment Clause violation. When Buono returned to the district court to stop the land transfer, that court found Congress’s strategy to be an invalid attempt to circumvent the 2002 injunction and permanently enjoined the land transfer (the “2005 injunction”). The Ninth Circuit again affirmed