1 (Slip Opin i o n) OCTOBER T ERM, 20 09 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r
. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES

Sy llabu s SALAZAR, SEC RETARY OF T H E INTERI OR, ET AL

. v
. BUONO
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 08–4 72. Ar g u ed Oc tober7, 2009—Dec i ded Apr il 28, 2010 In 1934, members of the Veterans of Foreign Wa rs (VFW) pla c ed a

La t i n cros s on federa l la n din t h e Moj a ve Na t i ona lPres erve (Pre

s e rve) t ohono r Am erica ns o ldiers wh o died in World WarI. Clai ming to be offendedby a religious symbo l ’s pre s ence on federal land, re

spondent Buono, a regular visitor tothe Preserve, filedthis suit a l

leging a violation of the Fi rst Amendme n t’s Est abl ish m ent Cl ause and seeking a ninjunction requirin gthe Gov e rnment to r e mov ethe
cross. In the litiga t ion’s fi rst st age (Buono I) , the Di s t rict Court found tha tBu ono ha d s t a n ding to s u e and , concluding that the pres

ence of the cross on federal land co nveye dan impressi on of govern mental endorsement of religion, see Lemonv. Kurtzman , 403 U. S

. 602, 61 2–6 13, it gr an ted Bu o n o’ s r e qu estedin ju n c tiv er e lief (20 0 2 in

j unction). Th e Dis t rict Court di d not consider whether the Govern

m e nt ’s a c t i ons rega rding t h e cros s ha d a s e cula r purpos e or ca us ed entanglement with religion. While the Government’s appea lwa s pending, Congress passed th e Depar tment of Defense Appropriations Ac t, 200 4, §81 21(a) of wh ic hdir e c t edthe Sec r e tar yof the Inter i orto tr ansferthe c r oss and th e la nd on which itstan ds to the VFW in ex

cha n ge fo r pr iva t ely owned la nd elsewhere in the Pre s erve (land

transfer statu t e). Affirming the Dist r i c tCour t’ s judg ment both as to standingand on the mer i ts, the NinthCircuit declined to address the sta t u t e’ s effec tonBu on o’ s su it orthe statute’ s c o nstitutiona lity (Buono II). Because the Government did not seek review by thi s Cour t, the Cour t of Appeal s ’ judg me nt became final. Bu ono then re

tur n ed to the Distr i c tCour t seekinginjunctiv er e lief ag ai nst the l a nd tr an sfer , eith erth r o u gh en for c e men tor modific a t i onof th e 2002 in

junc tion. In 200 5, that c o ur t r ejec t ed the Gov e r n ment’ s c l aim tha t2 SALAZAR v. BUONO Sy llabu s the tr ansferwas a bona fide atte mp t to c o mplywith the injunc tion, concluding, i n stead, that it was ac tually an invalid att e mpt to kee p the cross on display. The co urt gran ted B u ono’ s motion to enfor c ethe 200 2 in ju n c tio n ; den i ed as moot h i s mo ti onto a m en d i t ; an d per m a nently enjoined the Gove rnmentfromimplementing the land

tr an sferstatu t e (Buono III). The Ninth Circuit again affirmed, la rgely following t h e Dis t rictCourt ’ s rea s oning

. Held: The jud g ment is reversed, and the case is remand ed. 502 F. 3d 10 69 an d 527 F. 3d 758, r e v e r s ed an d r e man d ed. J US TI CE K ENNEDY , joined in full by T HE C HI EF J US TI CEan d inp a r t byJ US TI CE ALI TO , concluded :

1. Buono has standing to mai n tainthis ac ti on. Wh atever the valid

it y of t h e Governm e nt ’s a r gum e ntthat Buono’s a s s e rt ed inj u ry— offense at a religious symb ol’s pr esence on federal land—is not per

sonal to him and so does not conf er Arti cle III stan di ng, that argu

ment is not a v ailab l e at th is st ag e of the litigation. The District Cour t r ejec t ed the ar g u ment in Buono I, the Ninth Cir c uit affir m ed in Buono II, an d th e Cou r tof Appe als’ j u dg men tbec a me fin a lan d
unre v iewable upon the expi ration of the 90-day dea d li ne for filing a cert iora ri pet i t i on, 2 8 U. S

. C. §2 10 1 (c). Moreove r , Buo n o ha d s t a n d

ing in BuonoIII to seek a pplication of the injunc tion ag ainstth e la nd-t ra ns fer s t at ut e. A pa rt y t h a tob t a ins aj u dgm e n tin it s favor acquires a “j udicially cognizable ” interest in ensuring compliance with that judg ment. See Allenv. Wr i gh t , 468 U. S. 737. Bu on o’ s en title m ent to a ninjunc tion hav i ngbeen est abli s hed in Bu ono I an dII , he s o ught in Buono III to pr ev ent the Gov e r n ment fr om fr ustr atingor ev adin gth at i n ju n c tion

. His in ter e st s in doin gso w e r esu ffic i en tly personal and c o ncrete to support his standi ng, given the rights he ob

tained under th e earlier de cree agains t the same par t yas to the same
c r o ss an d th e same lan d

. T h e G o v e rnment’ s c o ntention that Buono
sou gh tto ex ten d , r a th er th anto en for c e , th e 2002 in ju n c tionis n o t an ar g u ment about standing , but about the mer i ts of the Distr i c tCour t’ s or der

. Pp. 7–9.

2

. The Dis t rictCourterred i n enjoining the Government from im

plementing the la nd-tra ns fer s t a t ut e on the premise that the relie f
was n e c e ssar yto pr otec t Bu on o’ s r i gh ts un derth e 2002 in ju n c tion

. Pp. 9–18. (a) A c o ur t mayor deran inj unc tion onl yaftertakinginto ac c o unt all the c i r c u mstanc es be ar ingon the need for prospective relief. See, e.g., Unit ed St atesv. Swift & Co. , 286 U. S. 10 6, 11 4. Her e , th e Dis

tr ic t Cour t di d not eng a g ein the appr o p r i ate inquir y
. The land

tr an sferstatu t e was a su bs tan t ia l c h an g ein c i r c u m sta n c e s bear in g on the proprie t y of the requested re lief. By dismi ssing as illici tthe motiv e s of Co n gr e ss inpass in git, th e D i str i c tCou r t took in su ffic i en t3 Cite as: 55 9 U

. S. ____ (2010) Sy llabu s

a ccount of thecontext in wh ich th e statute was enactedand the rea

son s forits p a ssag e
. Plac e m en t of th e c r o ss onfeder a llan dbypr i

v a te per s ons was not an attempt to se t t h e state’ s imp r imaturona particular cre ed. Rather, the inte nt wa s s i mply to honor fa llen s o l

dier s. M o r e over , th e cr oss stood forn e ar lysev e ndec a des befor eth e sta t ute was e n ac ted, bywhic h time the c r o ss and the c a use it c o m memor a ted h a d bec o me entwined in th e pu blicc o n s c i ou sn ess. Th e 2002 injunction thus p r esented the Gov e rnment with a dilemm a. It
c o uld not mai n tain the c r o ss without violating the injunction, but it
c o uld not r e m o v ethe cr oss without conve y ing disrespect for those the
c r o ss w a s see nas h o n o r i n g
. D eemin gneith e ralter n a t iv e sat i sf ac tor y , Congr e ss enac ted the land-tr a ns fer statute. The statute embod

ied alegisl ativ e judgment th at this dis p ute is b e st res o lv ed through a framework and policy of accommoda tion. The statute should not h av ebeendis m isse d a s an ev asion , foritbr ou gh t abou tac h an g eof law an d a c o n gr e ssion al st atemen t of po lic yapplic able to th e c a se
. Pp. 9–13. (b) Where legislative action und ermines the basis for previous re

lief, the relevant quest i on is wh ether an ongoing exercise of the court’s equitable authority i s suppo rted b ythe prior showing of ille

g a lity , ju dg ed ag ain s t th e claim th a tc h an g e d c i r c u m st an c e s r e n d er prospective relief inappropriate. Th e Distr i c tCou r t gr anted th e 200 2 injunction bas ed solely on its conclu sion that the presence of the cross on federal land conve y ed an impre ssion of governmental endorsement of religion, and the Ninth C i rcuit a ffirmed on the same grounds. Nei

ther court considered whether the Gov e r n men th a d ac te d based onan improper purp ose. Give n thi s solereliance on perception, any further relief grounded on the injunction sh ould have rested on the same ba

sis. Bu t th e D i str i c tCou r t u s ed aninjunction granted fo r one reason (perceived governmental endorsement) as the basi s for enjoining con

ductt h a twas a lleged t o b eobj e ct ionable for adifferentrea s on (a n il

licitgovernm e nt a lpurpos e). Ordering relief under s u ch circ um stan c e s w a s i m pr oper
. The c o ur t failed to consider whether the cha n ge in la w a n d circum s t a nces effect ed by t h e la nd-t rans fer s t a t ut e had rendered the “reasonabl e observ er” standard inappropriate to re

solv e the disp ute. Nordid the c o ur t attempt to r e a sse ss Buono I ’s findings in light of the acco mmoda ti on policy embraced by Congress. Rather, it concentrated so lel yon th e religious a s pect s of t h e cros s , di

v o r c e d fr om its bac kgr o u n dan d c o n t ex t. Pp. 13–1 7. (c ) The same r e spec t forac oor dinate br an c hof Gov e rnment tha t forb ids st riking down a nActof Congres s exceptupon ac l ea r s h owing of unco n s t itutiona lity, s ee, e.g., Un ite dSt ates v. Mor r is on , 529 U. S. 598, 6 07, r e q u ir es th at a c o n gr e ssion alc o mman dbe giv e neffec t unless no legal alternat ive exists. Even if, cont ra ryt ot h e congres -4 SALAZAR v. BUONO Sy llabu s sional judgment, the land transferwer ethough t an insuffic i ent ac

commodation in light of the earlie r endorsement findin g, it was in

c u mbent upon the Distr i c t Cour t to c o nsi d erless dr asti cr e lief than complete inval i dation of the statute. See, e.g., Ayott ev. Planned Par

enthoo d of Northe rn New En g. , 546 U. S. 320, 32 9. On r e man d , th at court s h ould conduct aproper inq u ir y into the continued neces s i ty for in

ju n c tiv e r e lief inligh tof th e statu t e. Pp. 17–18. J US TI CE ALITO concluded that this c a se sho u ld not be r e manded for the lowerc o ur ts to dec i de whet her implementation of the land

transfer statu t e would violate the Di str i c tCour t’ s injunc tion orthe Est abli s h m en tClau se. Rat h er , bec a use the factual record has been sufficiently developed to permit re soluti on of these questions, he would decide them and hol dthat the st atute may be i m plemented. The ca s e ’s s i n g ula rcirc um s t a n ces pres ent e d Congres s wit hadelica te pr oblem. Its solu tionw a s ana pproach designed to eliminate an y perception of religious sponsorship stemmi ng f r om the lo cation of the cross on federally owned land, while avoi ding the disturbing symbol

ism thatsom ewould as soc i ate wi th the destr u c t ion of this hi stor i c monument. The mec h anis m Congr e ss selec t ed is quit e c o mmon in the West, a “l and exchange,” whereb y o w ne rs hip of the la nd on whi c h t h e cros s is loca t e d would b et r a n s f erred t ot h e VFW in excha n ge for
a n other nea rb ypa rcel of equa l va lue. Th e la nd tra n s f er would not violate the District Court injuncti on, theobvious meaning of which was si mplyth at the Gov e r n ment c o uld not al low the c r o ss to r e main
on federal land. Norwouldthe s t atute’ s implement a tio nc o nstitute an endorsement of religion in violat ion of the Establi s hment Clause

. The so-c alled “ e ndor sement test” v i ews a c h allenged religious display through the eyes of a hypotheticalreason able observer aware of the his t ory a n d a ll ot her pert inentfa ct s rela ting t ot h e dis p la y. Here, therefore, thisobserver woul d be fami liar with the monument’ s or igin and history and thereby appreciate that the tr ansferrepresents an effor tbyCon gr e ss to addr es s a u n i qu e sit u ationan d to fin da solu tio n that be st ac c o mmoda tes c o nflic tingc o ncer ns. Finally , the sta t ute was not enacted for theillicit purp ose of e m bracing the monument’s
r e ligious mess ag e but to c o mmemor a te t h e Nation’ s wardead and t o av oid the dist urbingsy mbolism tha twould hav ebeen cr eated bythe
mon u m en t’ s destr u c t ion

. Pp. 1–7.

J US TI CE S CALIA , joined by J US TI CE T HOMA S , c o nc ludedthat thi s Court need not—indeed, cannot—decide this case’s me rits because Buono lacks Ar ticle III standing to pursue the relief he seeks, which is not enforce ment of the original in j unction b u t expa nsion of it. By enjoining the Government from impl eme n ting the statute at i ssue, th e Distr i c tCou r t’ s 2005 or derwen t well bey o n dth e or i gin al in ju n c tion’s proscription of the cross’s di sp l a y on public property. Because5 Cite as: 55 9 U

. S. ____ (2010) Sy llabu s Buono s eeks new relief, he mus ts h ow tha the ha s s t a n ding to purs ue that relief by demonstrat ing that bl ocking the land transfer will “re

dress or preve n t anac tual orimminentlyth reatened injury to [h im] caused by private or offi cial violation of law.” Summe rs v. Earth Is

land Institute , 555 U. S. ___ , ___. He has failed, however, to allege
an ysu c hin jur y
. Ev enass u min gth at be in goffen d ed bya r e ligiou s displ a yc o nstitutes a c o g n izable in jury, it is merely speculative whether the cross willrema in in place, and in any event Buono h a s ma de clea r, b ya d mitting he ha s no obj e ction to Chris t ian s y mb ols on private property, that he will not be offende d

. Neither district courts’ disc r e tion to ex pand injunctions th eyh a v eissu ed n o rth is D i str i c t Cou r t’ s c h ar acter i zationof i t s 20 05 order as merely enforcing the ex

is ting inj unction ma kes a n y difference. If in fa ct acourta w a r ds new r e lief, it mu st h av eAr tic l e III ju r i sdic tionto do so. Pp. 1–7.
K ENNEDY , J ., a nnoun ced the j u dgment of the Court and delivered an opinion, in which R OBERTS , C. J., joined, and in whic h ALITO , J., joined in part. R OBERTS , C. J., filed a concurring opinion. ALI T O , J., filed an opinion con c u r ring i npa rta n d con c u rrin g in t h e j u dgm e nt

. S CALIA , J., filed an opin ion concurri ng in the judgment, in which T HOMAS , J., joined. S TEVENS , J., filed a dissent ing opinion, in which G IN SB U R G an d S OTOMAYOR , JJ., joined. B REYER , J., filed a dissent ing opinion._________________

_________________ 1 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J.

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s
. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–4 72
KEN L. SALAZAR, SE CRETARY OF T H E IN TERIOR, ET AL ., PET I TIONERS v. FRAN K BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Apr il 28, 20 1 0 ] J USTICE K E NNEDY announced the judgment of the Court and delivered an opinion, in which T HE C HI E F J USTI C E joins and J USTICE ALI TO joins in part. In 1934, private citizens placed aLatin cross on arock outcroppingin a remote sectionof the Mojave Desert. Their purpose and intent was to honor American soldiers who fell in World War I. The original cross deteriorated over time, but a reconstructed one now stands at the same place. It is on federal land. The Court is asked to consider a challenge, not to the first place m ent of th e cross or i t s continued presence on federal lan d , but to a s t atute that would trans fer the cross and the lan don which it stands to a private party. De

partment o f Defense Appropriations Act, 2 004, Pub. L. 108–87, §8121(a), 117 Sta t . 110 0. The District Court permanently enjoined the Government from implementi ng the statute. The Courtof Appeals affirmed. We conclud e that its jud g ment was in error. I A The Mojave NationalPreserve (Preserve) spans ap

-2 SALAZAR v. BUONO Opinion of K ENNEDY , J. proximately 1.6 millionacres in s o utheastern California. The Preserve is ne stle d within the Mojave D e sert, whos e picturesque but rugged territory comprises 2 5 ,000 square miles, exceeding in siz e the combi n ed area of the Nation’s five smalles tStates. See Merriam -Webster’s Geographical Dictionary 755, 1228–1230 (3d ed. 1997). Just over 90 percent of the land inthe Prese rve is fede rally owned, with the rest owned ei ther by the State of California or b y private parties. The National ParkService , a divisionof the Department of the Interior, administers the Preserve as partof the Na tional Park Sys t em. 16 U. S. C

. §§410aaa–4 1 and 410aaa–46. Sunrise Roc kis a grani te outcroppi n g located within the Preserve. Sunrise Rock and the area in its immediat e vicinity are federal land, but two private ranches a r e located less than two miles away. The record does not indicate whether fencing is us ed t o mark the boundary of these ranches. In 193 4, members of the Vet e rans of For

eign Wars (VFW) mounted a Latin cross on the rock as a memorial t o soldi e rs who diedin World War I. A Latin cross consists of two bars—a vert ical one and a shorter, horizontal one. The cross has been replaced or repaired at various times over the years, most recently in 1998 b y Henry Sandoz. Sandoz is a private citizen who owns la n d elsewhere i nthe Preserve, a portion of which he is pre

pared to tr ansfer to the Gove rnment in return for its conveyance to the VFW of th e land on wh ich the cross stands, all pursuant to the statute now under review. The cross, as built by Sandoz, consists of 4-in ch diame

ter metal pipes painted white. The vertica l bar is less than eight feet tall. It cannot be seen fromthe neares t highway, which lies m o re than 10 miles awa y
. It is visi

ble, however, from Cim aRoad, a n a rrow stretch of black

top that co mes within 100 feet of Sunrise Rock. The cross h a s beena g a thering place for Easter services since it was first put in place; and Sunrise Rock and its3 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J. immediate area continue to be used as a campsite. At on e time the cross was accompanied b ywooden signs stating

“ ‘The Cross, Erected in Memory of the Dead o f All Wars,’ and ‘Erecte d 1934 by Members of Veterans of Foregin [s ic] Wars, Death Valley post 2884.’ ” Buonov. Kempthorne , 527 F. 3d 758, 769 ( CA9 2008). The sign s have sin c e disappeared, and the cross now stands unmarked. B Frank Buo n o, respondent here, is a retired Pa rk Servi c e employee who mak e s regular visits to the Preserve. Buono clai ms to beoff e nded by the presence of a rel i gio u s symbol on f e deral land. He filed s u it in the United State s District Court for the Central District of California. He alleged a violation of the Establishment Clause of the First Amen dment and sought an injunction requiring the Government to remove the cross. The litigation proceeded in what can be described as four stages. In the first, the DistrictCo urt ruled i n Buono’s favor on opposi ng motions for summary judgment. Buonov. Norton , 212 F. Supp. 2d 1202 (CD Cal. 2002) (Buono I)

. As an ini t ial matter , the courtfound tha t Buono had standing to maintain his Establishment Clause challenge. Id., at 1210–1214. Onthe merits, the parties agreed that the dispute should be governed by the so

called Lemontest, whic h the Distri ct Cour t for m ulated as follows: “A government religiou s practice or symbol will sur

vive an Establishment Clause challenge when it (1) has a secular purpo s e, (2) has a primary eff e ct tha t neither advances nor inhibits religion, and (3) does not foster excessive state en tanglement with religion.” Buono I , supra , at 1214–1215 (citing Lemonv. Kurtz

man , 403 U. S. 602, 612–613 (1971)). The court expressly declined to consider whether th e4 SALAZAR v. BUONO Opinion of K ENNEDY , J. Government’s ac tions regardingt h e cross had a secula r purpose, 212 F. Supp. 2d, at 1214–1215, or whether th ey caused excessive entanglement with religion, id., at 1217,
n. 9. Instea d, the court evaluated the primary effect of the cross by asking how it would be viewed by a “reasonab le observer.” Id., at 1216. Concluding that pre s ence of the cross on fe deral land conveyed an impressio nof govern

mental endorsement of religion, the court gra n ted Buono’s request for injunctive r e lief. The c o urt’s orderin Buono I (2002 injunction) permanently forbade the Governme nt “from perm itting the display of the Latin cross in the area of Sunrise Rockin the Mojave National Prese rve.” App. to Pet. for Cert. 146a. The United States Co urt of Appe als for the Ninth Cir

cuit stayed the 2002 injunction to the exten tthat it re

quired the cross to be removed or dismantled but did not forbid alternative methods of complying wi th the order. The Govern ment covered the cro ss, first witha tarpaulin and later with a plywo o d box. On appeal, the judgm e nt of the District Court was af

firmed, both as to standing and on the merits of Buono’s Establishment Clause challenge. Buonov. Norton , 371 F. 3d 543 (CA9 2004) (Buono II)

. Like the District Cour t, the Court of Appeals did not decide whether the Govern

ment’s action, or nona ction, with respect to the cross had been motiv a ted by a secular pur p ose. Id., at 550. Its ruling was based instead on the conclusion that a reason

able observer would perceive a cross on federal land as government al endorsement of religion. Id., at 549–550. The Government did not seek revi ew by this Court, so that the judgme nt of the Court of Appeals in Buono II beca me final. C During th e relevantproceedings, Congress enacted certain stat utes related to the cross:5 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J. (1) Before Buono I wa s filed, Congress passed an appro

priations bill that included a pro vision forbi dding the use of governmental funds to remo ve the cross. Consolidated Appropriations Act, 20 01, Pub. L. 106–554, §133, 114 Sta t

. 2763A–230. (2) While B u ono I was pending before the District Cour t , Congress designated the cross and its adjoining land “as a national memorial commemorati ng United States partici

pation in World War I and honoring the A m erican ve ter

ans of thatwar. ” Dep a rtment of Defense Appropriations Act, 2002, Pub. L. 107–117, §8137 (a), 115 Stat. 2278. Th e Secretar yof the Interior wa s directed to expend up to $10,000 to acquire a r e plica of the original cross and it s memorial plaque and to install the plaque at a suitab le nearby location. §8137 (c). (3) Three months after Buono I was decide d, Congress again prohibited the spending of governmental funds to remove the cross. Dep a rtment of Defense Appropriations Act, 2003, Pub. L. 107–248, §8065(b), 116 Stat. 1551. (4) While t h e Government’s appeal in Buono II was pending, Co ngress pass ed a statu t e (land-trans fer statute) directing t h e Secretar yof the In terior to t r ansfer to t h e VFW the Government’s interest in the land that had been designated a national memorial. Departmen t of Defens e Appropriations Act, 2004, Pub. L. 108–87, §8121(a), 11 7 Stat. 1100. In exchan ge, the Government was to receive land elsewh ere in the preserve from H e nry Sandoz and his wife. Ibid. Any difference in val u e betweenthe two par

cels would be equa lized through a cash payment. §§8121(c), ( d). The lan d -transfer statute provi d ed that the propertywould revertto th e Go vernment if not main

tained “as a memorial commemorating United Sta t es participatio nin World War I and honoring the American veterans of that wa r.” §8121(e), 117 Stat. 1100. Th e statute pres ents a central issue in this case. The Court of Appeals in Buono I I

did not address the6 SALAZAR v. BUONO Opinion of K ENNEDY , J. effect on th e suit of a potential land transfer under the statute. The court noted that the transfer might “ta ke a s long as two years to complete,” 371 F. 3d, at 545, and that its effect was not yet known, id., at 545–546. The court thus “express[ed] no view as to w h ether a transfer com

pleted under [the statu t e] would pass constitutional mus

ter.” Id., at 546. D After the C o urt of App e als affirmed in Buono II , Buono returned to the Distric tCourt seeking to pre v ent the land transfer. He sought injuncti ve relief against the transfer, either through enforcement or modification of the 2 002 injunction. In evaluating his request the tri al court de

scribed the relevant question as whether the land transfer was a bona fide attempt to compl ywith the injunction ( a s the Government claimed), or a sh am aimed a tkeeping the cross in pla c e (as Buono claimed). Buonov. Norton , 36 4 F. Supp. 2 d1175, 1178 (CD Cal. 2005) (Buono III)

. In Buono III , the court di d not consider whethe r the t r ansf e r itself was a n“independent violation of the Establishment Clause.” Id., at 1182, n. 8. The court nevertheless con

cluded thatthe transf e r was an attempt bythe Gover n ment to keep the cross atop Sunrise Rock and so was invalid. The court granted Buono’s motion to enforce the 2002 injunction; denied as moot his motion to amend it; and permanently enjoined the Government from imple

menting the land-transfer statute. Id., at 118 2. The Court of Appeals again affirmed, largely following the reasoning of the District Court

. Buonov. Kempthorne , 502 F. 3d 1069 (CA9 2007). The Government’s motion f o r rehearing en banc was denied over a dissent by Judge O’Scannlain, 527 F. 3d 758, and this Court granted certio

rari, 555 U. S. ___ (200 9).7 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J. II Before considering th e Di strict Court’s ord e r on the merits, the first inqui ry must be withrespect to Buono’s standing to maintain t h is action. To demonstrate stand

ing, a plain t iff must have “alleged such a personal stake in the outcome of the controversy a s to warra nt hisinvoca

tion of federal-court j u risdiction.” Ho rnev. Flores , 55 7 U. S. ___, ___ (2009) (slip op., at 8) (internal quotation marks omi tted). The Governme nt ar gues that Buono ’ s asserted injury is not perso nal to him andso does n o t confer Article III standing. As noted above, Buono does not find the cross itself objection able but in stead takes offense at the presence of a religious symbo lon federal land. Buon o does not c l aim that, a s a persona lmatter, he has been made to fe el excludedor coerced, and so, the Government contends, he canno t object to the presence of the cross. Brief for Petitioners 12–17. Whatever the validity of the objection to Buono’s stand

ing, that argument is not available to the G o vernment at this stage o f the litigation. When Buono moved the Dis

trictCourtin Buono I for aninjunction requiring th e removal of the cross, the Gover n ment raised the same standing objections it proffers now. Rejecting the Gov

ernment’s p o sition, the DistrictCo urt entereda judgmen t in Buono’s favor, which the Court of Appeals affirmed i n Buono II

. The Government did not seekreview in this Court. The judgment b e came final and unreviewable upon the expiration of the 90-day deadline under 28 U. S. C. §2101(c) for filing apetition for c e rtiorari. Toledo Scal e Co. v. Computing Sc al e Co. , 261 U. S. 399, 4 18 (1923); see Missouriv. Jenkins , 49 5 U. S. 33, 45 (1990) (90-day dea d

line is “mandatory an d jurisdictional”). The Governme nt cannot now contest Buono’s stan ding to obt a in the f i n a l judgment i n Buono I

. Of course, even thoughthe Cour t may not reconsider whether Bu ono had sta n ding to seek the 2002 injunction,8 SALAZAR v. BUONO Opinion of K ENNEDY , J. it is sti ll n e cessary to evaluate his standing in Buono II I

to seek application of the injunction again s t the lan d

transfer statute. That measure of relief is em bodied in th e judgment u p on which we granted review. This was a measure of relief that Buono had standing to seek. A party tha tobtains a judgment in its favor ac

quires a “j udicially cognizable” interest in ensuring com

pliance with that judgment. See Allenv. Wri ght , 468 U. S. 737, 763 (1 984) (plaintiffs’ right to enforce a desegregation decree to which they were parties is “a personal interest, created by law, in having the Sta t e refrain from taking specific actions”). H a ving obtained a fin a l judgment granting re lief onhis c l aims, Buono had standing to seek its vindication. The Government does not deny this proposition as a general matter. Instead, it a r gu es that Bu ono was no t seeking to vindicate

—but rath er to extend—the 2002 injunction. The first i n junction f o rbade the Government from maintaining the cross on Sunrise Rock; yet in Buono III h e sought to preclude the la nd transfer, a different government al action. The Go vernment co ntends tha t Buono lack ed standing to seek this additional relie f. Reply Brief for Petitioners 5. The Government’s argument, however, is properly ad

dressed to the relief granted by the judgment below, not t o Buono’s standing to se ekthat relief. The Go vernment has challenged whether appropriate relief was granted in Buono III in light of the relevant considerations and leg a l principles, and we sh all consider these questions. Th e standing inquiry, by co ntrast, turn s on the alleged injury that promp t ed the plaintiff to invoke the court’s jurisdic

tion in the first place. Buono’s en titlement to an injunc

tion having been established in Buono I andII , he sought in Buono I I

I

to prevent the Gover n ment from frustrating or evading that injunction. Based on the rights he ob

tained under the earlier decree—against the same party,9 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J. regarding the same cross and the same land—his interests in doing so were sufficientlypersonal and concrete t o support his standing. Although Buono also argued th at the land transfer should be prohibited as an “independent” Establishment Clause violation, the District Court did n o t address or order relief on that claim, which is not before
us. Buono III, 364 F. Supp. 2d, a t1182, n. 8. This is not a case in which a party seeks to import a previ o us standing determination into a wholly different dispute. In arguing that Buono sought to extend, rather than to enforce, the 2002 injunction, the Government in essence contends that the inju nction did not provide a bas is for the Distric tCourt to invalidate th e land tran s fer. This is not an argument about standing but about the merits of the Distric tCour t’s o r der. Tho s e points now must be addressed. III The procedural history of th is litig ation must be consid

ered to ide n tify the is sues now subject to review. The District Court gran ted the 2002 injunction after conclud

ing that a cross on federal land violated the Establishment Clause. The Government unsuccessfully challenged that conclusion on appeal, and the judgment became final up on completion of direct review. At that point, the judgment “became res judicata t o the parties and those in privit y with them, not only as to everym a tter whichwas offered and receive dto sustainor defeat the claim or demand, but as to any other admissible matter which migh t have been offered forthat purp ose.” Travelers Indemnity Co. v. Bailey , 557 U. S. ___, ___ (2009) (slip op., at 14) (internal quotation marks omitted). The Government therefor e does not—and could no t—ask this Court to re consider th e propriety o f the 2002 injunction or the Di strict Court’s reasons for granting it. The question now before the Court is whether the Dis

-10 SALAZAR v. BUONO Opinion of K ENNEDY , J. trict Courtproperly e n joined the Governme nt from im

plementing the land-transfer statute. The District Court did not con s ider whether the sta t ute, in is olation, would have violated the EstablishmentClause, and it did n o t forbid the land transfer as an independent constitutional violation. Buono III , supra , at 1 182, n. 8. Rather, the court enjoined complia nce with the statute onthe premis e that the relief was necessary to protect the r i ghts Buono had secured through th e 2002 inju nction. An injunction is an ex ercise of a court’s equitable au

thority, to be ordered only af ter t a king into account all of the circum s tances that bear on the need forprospectiv e relief. See United S t a t esv. Swif t & Co. , 286 U. S. 106, 114 (1932). See also Weinb erger v. Romero-Bar celo , 456 U. S. 305, 312 (1982); He chtCo

. v. Bo wles , 321 U. S. 321, 329 (1944); 11A C. Wright, A. Miller, & M. Kane, Federal Practice an d Procedure §2942, p p
. 39–42 (2 d ed. 1995 ) (hereinafter Wright & Miller). Equitable relief is not granted as a matter of course, see We inbe rger , 456 U. S. , at 311–312, and a court should be particularly cautious when contemplating relief that im plicates public interest s, see id., at 312 (“In exercising their sound discretion, courts of equity should pay particular r e gard for the public c o n sequences i nemployin g the extraordinary re medy of in

junction”); Har r iso n vil lev. W. S. Dickey Clay Mfg. Co. , 2 89 U. S. 334, 338 (1933) (“Where an important public interest would be prejudiced, the reasons for denying the injunc

tion may be compellin g”). Because injunctive relief “is drafted in light of what th e court believes will be the future course of event s , . . . a court must never ignore significant changes in the law or circumstances underlying an injunction lest the decree be tur n ed into an ‘instrument of wrong.’ ” Wright & Miller §29 6 1 , at 393–3 94 (quoting Swif t & Co. , supra , at 1 15). Here, the District Cour t did not en gage in the appropri

ate inquiry. The land-transfer sta t ute was a substantial11 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J. change in circumstances bearing on the pro p riety of th e requested relief. The court, however, did not acknowledge the statute’s significan ce. It exam ined the ev ents that le d to the statute’s enactm ent and found an intent to prevent removal of t h e cross. Deeming this intent illegi timate, the court concl u ded that nothing of moment had changed. This was e rror. Evenassuming that the la nd-transfer statute was an attempt to prevent removal of the cross, it does not follow that aninjunction against its implementa

tion was appropriate. By dismissing Congres s ’s mo tives as illicit, th e District Court took insufficient account of t h e context in which the statute wa s enacted and the reasons for its passage. Private citi zens put t h e cross on Sunrise Rock to com

memorate American servicemen who had died in Worl d War I. Although cert ainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message. C f

. County of Alleghenyv. Ame r i can Ci vil Libe r ties Union, Gre a ter Pittsburgh Cha p te r , 492 U. S. 573, 661 (1989) (K E NNEDY , J., concurring in judgment in part a n d dissenting in part) (“[T]he [Establishment] Clause forbids a city to permit the pe rmanent er ection of a large Latin cross on the roof of cityhall .

. . because such an obtrusive year-round religious display would place the government’s weight behind an obvious effort to proselytize on behalf o f a particularreligion”). Placement of the cross on Govern

ment-owned land was not an attempt to set the imprima

tur of the state on a particular creed. Rathe r , those who erected the cross intended simply to honor our Nation’s fallen soldiers. See Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 15 (noting th at the plaque accompanying the cross “was decorated with VFW decals”). Time also has played its role. The cross had stood on Sunrise Rock for nearly seve n decades before the statute was enacted. By then, the cross and the cause it com

-12 SALAZAR v. BUONO Opinion of K ENNEDY , J. memorated had becom e entwined in the public conscious

ness. See ib i d

. Memb ers of thepublic gathered regularly at Sunrise Rock to pay their respects. Rather than let th e cross deteriorate, community members repeatedly took it upon themselves to rep l ace it

. Congress ultimately desig

nated the cross as a national memorial, ranking it amon g those monu ments honoring the noble sacrifices that con

stitute our national heritage. See note following 16 U. S. C. §431 (listing of ficially designated national mem o rials, including the National D-Day Memo rial and the Vietnam Ve terans Memorial). Research discl o ses no other national memorial honoring American soldiers—m ore than 300,000 of them—who were killed orwounded in World War I. See generally A. Leland & M. Oboroceanu, Congressional Research Service Reportf o r Congres s , American War and Military Ope r ations Casualties: Lis t s and Sta t istics 2 (2009). It is reasonable to interpret th e congressional designation as givi ng recogni t ion to th e historical meaning that the cross had attained. Cf. Van Ordenv. Pe rry , 545 U. S. 677, 702–703 (2005) (B REYER , J

. , concurring in judgment) (“40 years” without legal chal

lenge to a Ten Commandments display “suggest that the public visiting the [surrounding] grounds ha s considered the religious aspect of t h e tablets’ message as part of wha t is a broader moral an d historical message reflective of a cultural heritage”). The 2002 injunction thus presented the Go vernment with a dilemma. It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disr espect for those the cross was seen as honoring. Cf. id., a t704 (to in validate a longstandin g Ten Commandments display might “create the very kind of religious ly based divisiveness that the Establishment Clause seeks to avoid”). Deeming neither alternative to b e satisfactory , Congress enacted the statute here at issue. Congress, of course, m a y not us e its legislativ e powers to13 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J. reopen fina l judgments. See Pla u tv. Spen dthrift Farm , Inc. , 514 U. S. 211, 225–226 (1995). That pri n ciple, how

ever, was not a bar to this statute. The Government’s right to tra nsfer the land was notadjudicate d in Buono I or compromised by the 2002 injunction. In belittling the Gove rnment ’s efforts as an attempt t o “evade” the injunction, Buono III , 364 F. Supp. 2d, a t 1182, the District Co urt had th ings backwards. Con

gress’s pre r ogative to balance opposing interests and i t s institutional competence to do so p r ovide one of the princi

pal reasons for deference to its policy determi nations. See Patsyv. Board of Regents of Fla. , 457 U. S. 496, 513 (1982). Here, Congress adopte d a policy with respect to land it now owns in order to resolv e a specific controversy

. Congress, the Executive, and the J u diciary all have a dut y to support and defend the Constitution. See United S t a t es v. Nixon , 418 U. S. 683, 703 (1974) (“In the performance of assigned constitutional duties eac hbranch of the Govern

ment must initially interpret th e Constitution, and the interpretati on of its powers by a n y branch is due great respect fro m the others”). The l and-transfer statute e m bodies Con gress’s legislative judgment that this dispute is best resolved througha framewo r k an d policy of accom

modation for a symbo lthat, while challenged under th e Establishment Clause, has complex meaning beyond the expression of religious views. T h a tj u d g m e n ts h o u l dn o t have been di smissed a s an evasion , for the stat ute brough t about a ch ange of law and a co ngressional statement of policy applicable to the case. Buono maintains that any governmental interest in keeping the cross up m u st cede to the constitutional con

cerns on which the 20 02 injunction was based. He argues that the land transfer would be“an incomplete remedy” to the constitutional violation underlying the injunction and that the transfer would make achieving a proper remedy more difficult. Brief for Respondent 54.14SALAZAR v. BUONO Opinion of K ENNEDY , J. A court mu st find prospective relief that fits the remed y to the wrong or injury that has beenestablished. See Swif t & Co. , 286 U. S., at 114 (“A continuing decree of injunction directed to events to come is subj ect always to adaptation as events may shape the need”). See also UnitedS t atesv. Uni t e dShoe Ma chinery Cor p
. , 391 U. S. 244, 249 (1 968). Where legislative action has undermined the basis u p on which relief has pr eviously been granted, a court must consider whether the original finding of wrongdoingcontinues to justify t h e court’s i n tervention. See Railway Employeesv. Wright , 364 U. S. 642, 648–64 9 (1961); Pen n sylvaniav. Wheeling & Belmont Bridge Co. , 18 How. 4 21, 430–432 (1856). The relevant questionis whether an ongoing exercise of th e court’s equitable au

thority is supported by the prior showing of il legalit y, judged agai nst the claim that cha n ged circu mstances have rendered pr ospective relief inappropriate. The District Court granted the 2002 injunction based solely on its conclusion that presence of the cross on fed

eral land conveyed an impression of governmental en

dorsement of religion. The court expressly disavowed an y inquiry into whether the Government’s actions had a secular purpose or caused excessive entanglement. Buono I

, 212 F. Supp. 2d, at 1215, 1217, n. 9. The Court of Ap

peals affirmed the injunction on the same grounds, simi

larly eschewing any scrutiny of governmental purpose. Buono II , 3 71 F. 3d, at 550. Although, for purposes of theopi n ion, thepropriety of the 2002 inj unction may be assum e d, the following discus

sion should not be rea dto sug g est this Cour t ’ s agreement with that judgment, some aspects of which may be ques

tionable. The goal of avoiding governmental endorsement does not require eradication of all religious s y mbols in the public realm. A cross by the side of a public highway mark ing, for instance, the place where a state trooper perished need not be taken as a s t atement of governmen

-15 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J. tal supportfor sectarian beliefs

. The Constitution does not oblige government to avoid any public acknowledg

ment of reli gion’s role i nsociety. See Leev. Wei s man , 505 U. S. 577, 598 (1992) (“A relentless and all-pervasive attempt to exclude religion fromevery aspect of public life could itself become in consiste nt with the Constitution”). See also C o rporation of Presidin g

Bishop of Church of Jesus Ch ris tof Latter

- day Saintsv. Amos , 483 U. S. 327, 334 (1987) (“This Court has long r e cognized that the gov

ernment m a y (andsometimes must) accom m odate reli

gious practices and that it may do so without violating the Establishment Clause” (internal quotationmarks omit

ted)). Rather, it leav es room toaccommodate divergent values within a constitutionally permissible fr amework. Even assuming the propriety o f the original relief, however, th e question befo re the District Court in Buono III was whether to inva lidate the land transfe r. Given th e sole reliance on perception as a b a sis for the 2002 injunc

tion, one would expect that an y relief grounded on tha t decree would have re sted on th e sameba sis. But t h e District Co urt enjoined the land transfer o nan entirely different basis: its su spicion of an ill icit governmental purpose. See Buono III , 364F. Supp. 2d, at 1182. Th e court made no inquiry into the effect that kno w ledge of the transfer of the land to private own e rship would have had on any perceived governmental endorsement of religion , the harm to which the 2002 inj unction was addressed. The Distric tCourt thu s used an injunction g r anted for o n e reason as the basis forenjoining conduct that was alleged to be objectionable for a differe nt reason. Ordering relief under such circumstan ces was improper—ab s ent a finding that the re lief was necessary to address an independent wrong. See ibid. , n. 8 (noting t hat the co urt “need not consider [Buono’s] oth e r contention that the land transfe r itself is anindependent violation of the Establishment Clause”).16 SALAZAR v. BUONO Opinion of K ENNEDY , J. The District Court should have evaluated Buono’s modi

fication req u est in light of the objectives of t h e 2002 in

junction. The injunction was iss u ed to address the im

pression conveyed by the cross on federal, not private , land. Evenif its pur p ose were characterized more gener ally as avoiding the perception of governmental endorse

ment, that purpose would favor—or at least not oppose— ownership of the cross by apri v a t e part y ra ther thanby the Govern ment. Cf. Pleas a nt Grove Ci tyv. Summum , 555 U. S. ___, ___ (20 09) (slip op., at 8) (“[P]ersons who observe donated monuments routinely—and reasonably— interpret th em as conveying some message on the propert y owner’s behalf”). Buono argu es that the cross would continue to stand o n Sunrise Rock, which has no visua l differentiation from the rest of the primarily federally owned Preserve. H e also points to the reversionary claus e in the land-transfer statute req u iring thatthe land be returned to the Gov

ernment if not maintained as a World War I memorial. Finally, he notes tha tthe cross remains designated a national m e morial by an Act of Congress, wh ich arguabl y would prevent the VFW from dismantling the cross even if it wanted to do so. Brief for Respondent 37–48. The Distric tCourt failed to co nsid er whether, in l i ght of the change in law and circumstan ces effected by the lan d

transfer statute, the “reasonable observer” s t andard co n tinued to be the appropriate fram ework th rough which to consider the Establish m ent Clause concerns invoked to justify the requested relief. As a general matter, court s considering Establishment Clause challenges do not in

quire into “r easonable observe r” perceptions with respect to objects on private land. Even if, however, this standard were the appropriate one, but s ee County of A llegheny , 492 U. S., at 66 8 (K ENN E DY , J., concurring in judgment in part and dissen t ing in part) (criticizi ng the “reasonable ob

server” test); Capi tol Square R e vie w andAdv i sory Bd. v.17 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J. Pinette , 51 5 U. S. 753 763–768 ( 1995) (plurality opinion) (criticizing reliance on “perce ived endorseme n t”), it is not clear thatB u ono’s claim is meritorious. Thattest requir e s the hypoth etical construct of an objective observer wh o knows all of the pertinent facts and circum s tances sur

rounding the symbol and its pla c ement. See id. , a t78 0 (O’Connor, J., concurring in part and concurring in judg

ment). But see id., at 767–768 (plurality opin ion) (doubt

ing the workability of the reasonab le observer test). Ap

plying this test here, the message conveyed by the cross would be a ssessed in the context of all relevant factors. See Van Orden , 545 U. S., at 700 (B REYER , J., concurring in judgment) (the EstablishmentClause in quiry “mus t take accoun t of context and conseq uences”); Lee , supr a , at 597 (“Ou r Establishment Clause jurispruden c e remains a delicate and fact-sensitive one”). The Distric tCourt did not a ttemptto reassess the find

ings in Buono I in l i ght of the policy of accommodation that Congress had em braced. Ra ther, the District Court concentrate d solely on the religious aspects of the cross, divorced from its background and context. But a La tin cross is not merely a reaffirmation of Christi an beliefs. It is a symbol often us edto honor and respect those whose heroic acts, noble contributions , and patient striving hel p secure an h o nored place in h i st ory for this Nation and its people. H e re, one Latin cross in the desert evok es far more than religion. It evokes tho u sands of small crosses in foreign fields mark ing the graves of Americans who fell in battles, battles whose tragedies are compounded if t h e fallen are forgotten. Respect for a coordinate branch of Government forbids striking do wn an Act of Congress except upon a clea r showing of unconstitutionality. See United S t ates v. Mor

rison , 529 U. S. 598, 607 (2000); El Paso & Northea s te r n R. Co. v. Guti err ez , 215 U. S. 87, 96 (1909 ). The sa me respect req u ires that a congressional command be given18SALAZAR v. BUONO Opinion of K ENNEDY , J. effect unless no legal alternative exists. E v en if, contrar y to the congressional judgme nt, the land transfer were thought aninsufficient accommodation in light of the earlier finding of religious endorsement, it was incumbent upon the District Court to co nsider less drastic relief than complete invalidation of the lan d -transfer statute. See Ayottev. Planned Parenthood of Northern New Eng. , 54 6 U. S. 320, 329 (2006) (in grantin g relief, “we try not to nullify more of a legisl ature’s work than is necessary, for we know that [a] ruling of unconstitutionality frustrates the intent of the el ected representatives of the peopl e ” (internal quotation marks omitted; alteration in original)); Alaska Ai rl ines, Inc. v. Brock , 480 U. S. 678, 684 (1987). For instance, if there i s to be a conveyance, the question might arise regardingt h e necessit yof furtheraction, suc h as signs to indicate the VFW’s ownership of t h e land. A s we have n o ted, Cong ress direct ed the Sec r etary of t h e Interior to install near the cross a replica of its original memorial p l aque. One of the signs that appe ars in early photographs of the cross specif ically identifies the VFW as the group that erected it. Noting the possibilityof specific remedies, however, is not an indication of agreement about the continued neces

sity for inju nctive relief. The land- transfer sta t ute’s bear

ing on this dispute must first be determined. To date, this Court’s jurisprudence in this a r ea has re frained fro m mak i ng sweeping pronouncemen ts, and this case is i l l suited for announcing categoricalrules. Inlight of the finding of unconstitutionality in Buono I , and the highly fact-specific nature of the inquiry, it is best left to the District Court to und ertake the analysis inthe first in

stance. Onremand, if Buono continues to challenge im

plementation of the statute, the District C o urt should conduct a proper inquiry as descri bed above.19 Cite as: 55 9 U

. S. ____ (2010) Opinion of K ENNEDY , J.

* * * The judgment of the Court of Appeals is reversed, and the case is remanded for further p r oceedings.
It is so orde red._________________

_________________ 1 Cite as: 55 9 U

. S. ____ (2010)

R OBERTS , C. J

. , con c u rrin g 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–4 72
KEN L. SALAZAR, SE CRETARY OF T H E IN TERIOR, ET AL ., PET I TIONERS v. FRAN K BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Apr il 28, 20 1 0 ] C HIEF J UST I CE R OBERT S , concurrin g
. At oral argument, res p ondent ’s counsel stated that i t “likely wou l d be consistent with the injunct i on” for the Government to teard o wn the c r o ss, sell the land to t h e Veterans of Foreign W a rs, and return the cr oss to them , with the VFW immediately raising the cross again. Tr. of Oral Arg. 4 4

. I do not see how it can make a difference for the Govern ment to skip thatempty ritual and do wh at Congress told it to do —sell the land with t h e cross on it. “The Constitution deals with substance, not shadows.” Cummingsv. Missouri , 4 Wall. 277 , 325 (1867)._________________

_________________ 1 Cite as: 55 9 U

. S. ____ (2010) Opinion of ALIT O , J. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–4 72
KEN L. SALAZAR, SE CRETARY OF T H E IN TERIOR, ET AL ., PET I TIONERS v. FRAN K BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Apr il 28, 20 1 0 ] J USTICE ALI T O , concurring in part and concurring in the judgment. I join J USTICE K EN NE DY’s opinion in all respects bu t one: I would not remand this cas e for the lo wer cour ts to decide whether implementation of the land-transfer stat

ute enacted by Con gre ss in 2003, Departmen t of Defens e Appropriations Act, 2004, §8121, would violate the District Court’s inj unction or the Estab lishment Clause. The factual record has been suffi ciently developed to permit resolution o f these questions, and I would therefore decide them and hold that the statute may be implemented. The singular circums ta nces surrounding the monument on Sunrise Rockpresented Congress with a delicate prob

lem, and the solution that Congre ss devised is true to the spirit of practical a c commodation that ha s made th e United Sta t es a Nation of unpa r alleled pluralism and religious tolerance. In brie f, the situation that Congres s faced was a s follows. After servic e in the Fir s t World W a r, a group of veterans moved to the Mojave Desert, in some cas e s for healt h
reasons. 1 They joined the Veterans of Foreign Wars

——————

1 S ee Mem o ra n d umfromMa rk Luellen, Hi storian, Dept. of Interior, to Su per i n t en den t , M ojav eNation a lPr es erv e(Jan . 31, 20 00) (Lu e lle n Memo), Decl. of Charles R. Shockey in Buono v. Norton , No. EDCV01 – 216–RT (CD Cal., M a r
. 13, 200 2) (Ex h . 17); Br ief for VFW et al. as2 SALAZAR v. BUONO Opinion of ALIT O , J. (VFW), Dea t h Valley Post 2884, and in 1934, they raised a simple white cross on an outcropp ing called Sunrise Rock to honor fallen American soldiers. 2 These veterans se

lected Sunr ise Rock “in part beca use they believed there was a color shading on the Rockin the shape of an Ameri

can soldier or ‘doughboy.’ ” 3 One of these men was John Riley Bembry, a miner wh o had served as a medic and had th us presumably witness e d the carnage of the wa r firsthand. 4I ti s s a i dt h a tM r
. B e m bry was not a particularly religious man, but he neverthe

less agreed to look after th e cross and did so for s o me years. 5 The Sunris e Rock mo nument wa s located on land be

longing to the Federal Government, but in this part of the country, where much of the land is federally owned, boundaries between Government and private land are often not marked, 6and private citizens are per m itted to go on and to use federalland for a variety of purposes. 7Al

-

—————— Amici Curiae 6–7, 15 (h er ei n a fterVFW B r ief); see also B. Au smu s , E a st M ojav eDiar y 116 (1 98 9) (h er ein a fterAu smu s ).

2 See Lu ellenMemo; VFW Br ief 15–1 6. 3 Id. , at 15. 4 See Tr . of Or al Ar g
. 55; VFW Br ief 7, 16; see also Au s m u s 116. 5 See VFW Br ief 7, 16. 6 See App. 79, 81 (testimony of resp ondent) (noting that when he first saw the monument, he did not know wh ether it was on public or private land); id. , at 80 (des crib i ng Moj ave Pres erve a s “ p rim a rily federa l la nd with ala rge a m ount of inho ldings of non-f e dera l la nd”); s ee a l s o Wilki e v. Robbin s , 551 U. S. 537, 54 1–5 43 (2 007).

7 See Tay l orGrazin gAc t, 48 Sta t . 12 69, a s amen ded, 43 U. S. C. §31 5 et seq

. ;Gen e ral M i n i n gAc t of 18 72, Rev

. Sta t . 2 319, 3 0 U. S. C. §22 ; And r usv. Shell Oil Co. , 446 U. S. 657, 6 5 8(198 0); see al so E. Ny str o m , Dept. of Interior, National Park Service, From Negle c ted Sp ace T o Protected Place: An AdministrativeHistory of MojaveNational Pre

serv e, c h . 2 (M ar . 2003) (desc r ibin gmin i n gan d gr azin gin M ojav e Pres erve), o n line at http://www .nps .g o v/h is tory/his tory/online_books / moja/adhi.htm (all Inter n et mater i a l s a s v i sited Apr

. 23, 20 10, an d available in Cl erk of Cour t’ s c a se file).3 Cite as: 55 9 U

. S. ____ (2010) Opinion of ALIT O , J. though Sunrise Rock was fe derally owned, Mr. Bemb ry and his fell ow veterans tookit upon themse lves to place their monument on th at spot, ap parently without obtain

ing approval from an y federal officials, an d this use of federal land seems to have gone largely u nnoticed for many years, in a ll likel ihood due to the spot’s remote an d rugged loca tion. Sunrise Ro ck is situated far from any majo r population center; temperatures often ex ceed 100 degrees Fahrenheit in the sum m er; and visitors are warned of the dangers of traveling in the area. 8As a res u lt, at leas t until this litigation, i tis likely that the cross was s e en by mor e rattlesnake s than humans. Those humans who made the trip to see the monument appear to h a ve viewed it as conveying at least two signifi

cantly diffe rent messages. See Pleasan tGrove City, U t ah
v. Summu m , 555 U. S. ___, ___– ___ (2009) (s lip op., at 11– 12) (“The meaning conveyed by a monumen t is generally not a simple one,” and a monumen t may be “interpreted b y different observers, in a variety of ways”). The cross is of course the preeminent symbol of Christianity, and Easter services have long been heldon Sunrise Rock, 371 F. 3d 543, 548 (CA9 2004). But, as noted, the original reason for the placement of the cross was to commemorate American war dead a n d, particul a rly fo r those with searing memo

ries of The Great War, the symbol that was selected, a plain unadorned white cross, no doubt evoked the unfor

gettable image of the white crosses, row on row, that mark ed the final res t ing places of so ma ny American soldiers who fell in that conflict. This is roughly how things stood until the plaintiff in

——————

8 See Dept. of I n terior, Natio n al Pa rk S e rvice, Moj ave Na t i ona lPre

s erve , Op eratin g H our s& S e as ons , http: / / www. nps
. gov/mo ja/planyour vis it/ hours

. htm; D

. Ca s e bier, Mo j ave Roa dGu ide: An Adventure Th rough Time 11 4 (199 9); 371 F. 3d 5 43, 549 (C A9 2 004).4 SALAZAR v. BUONO Opinion of ALIT O , J. this case, a nemployeeof the National ParkService who sometimes viewed the cross during the performance of hi s duties and claims to have been off e nded by its presence on federally owned land, brought this suit an d obtained an injunction restraining the Federal Govern ment from “permittingthe display of the La tin cross in the area o f Sunrise Rock.” App. to Pe t. for Cert. 146a. After the Ninth Circuit affirmed that decision, and the Government elected not to seek review bythis Court, Congress faced a problem. If Congress had done nothing, th e Governm e nt woul d have been requiredto ta ke down the c r oss, whi c h ha d stood on Sunrise Ro ck fo r nearl y70 years, and this re

moval would have been viewed by many as a sign of disre

spec t for the br av e soldier s whom the cross was meant to honor. The demolition of this vene rable if uns ophistica t ed, monument would also have been interprete d by some as an
arres t ing s y mbol of a Gove rnmen tthat is no t neutral but hostile on matte rs of religion and is bent on eliminating from all public places and symbols any trace of our coun

try’s religio us heritage. Cf. Van Orden v. Pe rr y , 545 U. S. 677, 704 (20 05) (B REY E R , J., concu r ring in judgment). One possible solution would have been to supplement the monument on Sunrise Rockso that it appropriately recognized the religiou s diversity of the American soldier s who gave their lives inthe First World War. In American military ce meteries overseas, the graves of soldiers who perished in that war were marked with eit h er a whit e cross or a white Star of David. 9More than 3,500 Jewis h

——————

9 See D. Holt, American MilitaryCe meteries 47 3, 474 (199 2); see als o American Battle MonumentsCommis sion, http://www .abmc.go v/
c e meter i es / ce meteries.php (containing photographs of the two type s of mar k ers). This policy pr esumably refl e c ted the rel i g ious makeup of the Ar medFor c e s at the time of the Fir s t Wor l d War

. Today , v e ter a ns and theirfamil i es maysele c tanyof 39 types of head stones. See U. S. De pt. of Veterans Aff a irs, Av ail abl e5 Cite as: 55 9 U

. S. ____ (2010) Opinion of ALIT O , J. soldiers gave their lives for the United States in World War I, 10and Congress might have chosen to place a Star of David on Sunrise Rock so that the monument would dupli

cate those two types of headstones. But Congress may well have thought—not without r e ason—that the addition of yet another religious symbol would have been unlikely to satisfy t h e plaintiff, his attorneys, or the lower court s that had found the existing m o nument to be uncon

stitutional on the ground that it impermissibly endorsed religion. Congress chose an alt e rnative approach tha twas de

signed to eliminate any perception of religious sponsorship stemming from the loc a tion of the cross on federally owned land, while at the same time avoiding the disturbing symbolism associated with the destruction of the historic monument. The mech anism that Congress selected is one that is quite commonin the West, a “landexchange.” 11 Congress enacted a law under which own e rship of the parcel of la nd on which Sunrise Rock is located would be transferredto the V F W in excha n ge for another nearb y parcel of eq ual value. Congress required that the Sunrise Rock parcel be u s ed f o r a war memorial, §8121(a), 1 17 Stat. 1100, but Congress did not prevent th e VFW fro m supplementing the existing monument or replacing it with a war memorial of a di fferent design. Although J U S TI CE

—————— Emble m s of Belief for Placement on Government H e adstones and Markers , http://ww w.cem. v a. gov/hm/hmemb.as p
.

10 See J. Fr edman& L. Falk, Jews inAme r ic anWar s 10 0–1 01 (5 th ed. 195 4); Br ief forJewishWarVeter a ns of the United States of Amer

ic a, In c
. as Am icusCuriae 33.

11 S ee G. Draffan & J. Blaeloch, Commons orCommodi t y ? The Di

lemma of Fed e ral Land Exchanges 10 (20 00). Con gr e ssion allyau th or ized land exchanges are common. See, e. g. , Consolidated Na tura l Resou r c e s Ac t of 2008, §1 0 1 (d), 122 Sta t . 758; Nat i on al Defen s e Au

th or izationAc t forFisc al Ye ar200 8, §28 4 5 , 122 St at. 5 5 4 ; Cityof Yu ma Improvement Act, §3, 120 S t a t . 33 69 ; Ac tof Dec. 2 3 , 2 004 , §1 , 11 8 S t a t

. 391 9.6 SALAZAR v. BUONO Opinion of ALIT O , J. S TEVE NS characterize s this land exchange as one that endorses “a parti cular religious view,” post , a t26 (dissent

ing opinion) , it is noteworthy that Congress, in which our country ’s religious diversity is well represented, passed this law by overwhelming majorities: 95–0inthe Senate and 407–15 in the House. See 149 Cong. Rec. H879 3 (Sept. 24, 2003); id. , a tS11943 (Sept. 25, 2 003). In m y view, there is n o l e galground for block i ng the implem e n tation of this law. The dissentcontends t hat the lan dtransfer would vio

late the District Court injunction, but that argument, for the reasons explained in J USTICE S CALIA’s opinion, see post , at 2 (concurring in judgment), is plainly unsound. The obvious meaning of the injunction was simply that the Government could not allo w the cross to remain on federal land. There is also no merit in J U S TI CE S TEVE NS ’ contention that implementation of the statute would constitute an endorsement of Christianity and would thus violate t h e Establishment Clause. Assuming that it is a p propriate to apply the s o -called “endorsement test,” this t e st would n o t be violated by the land exchange. The endor s ement test views a ch allenged display throu gh the eye s of a hypo

thetical reasonable obs e rver wh o i s deemed to be aware of the historyand all other pertin e nt facts r e lating to a challenged display. See ante , at 16–17(opinion of K ENN E DY , J.). H e re, therefore, this obs e rver would be familiar with the origin and history of the monument and would also know both that the la nd on which the monu

ment is located is priva t ely owned and that th e new owne r is under no obligation to pr eserve the monume n t’s present design. With this knowledge, a reasonable obs e rver would not view th e land exch ange as the equivalent of the con

struction of an official World War I memorial on the Na

tional Mall. Cf. post , at 26. Rather, a well-informed ob

server would appreciate that the transfer r e presents an7 Cite as: 55 9 U

. S. ____ (2010) Opinion of ALIT O , J. effort by Congress to address a unique s i tuation and to find a solution th at be st accommodates conflicting
concerns. Finally, I r eject J USTI CE S TEVEN S ’ suggestio n that the enactment of the land-transfer law was motivated by an illicit purpose. Id . at 24. I would not be “so dismissive of Congress.” Citizen sU n itedv. Fe deral Elec ti on Comm’n , 558 U. S. ___, ___ (20 10) (slip op., at 70) (S TEVEN S , J., concurring in part and dissenting in part). Congress has shown notable solicitu d e for the rights of religious minori

ties. See, e.g ., Religiou s Freedom Restoration Act of 1993, 42 U. S. C. §2000bb et seq.; Religious Land Us e and Insti

tutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq
. I would not jump to the conclusion that Congress’ aim in enacting the land-transfer law was to embrace th e religious message of the cross; rather, I see no reason to doubt that Congress’ consistent goal, in legislating with regard to t h e Sunrise Rock monu ment, has been to com

memorate our Na tion’s war dead a n d to a v oid the disturb

ing symbolism that would have b een created by the de

struction of the monument. For these r e asons, I would reverse the decision below and remand with instr u ctions to vacate the order prohibit

ing the implementationof the land- transfer statute._________________

_________________ 1 Cite as: 55 9 U

. S. ____ (2010)
S CALIA , J ., co n c ur ringin j u d g ment 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–4 72
KEN L. SALAZAR, SE CRETARY OF T H E IN TERIOR, ET AL ., PET I TIONERS v. FRAN K BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Apr il 28, 20 1 0 ] J USTICE S CALIA , wit hwhom J USTICE T HOMA S joins, concurring i nthe judgm e nt. I agree with the plur ality that the Court of Appeals erred in affirming the Distri ct Court’s order enjoining the transfer of the memorial to the Ve terans of Foreign Wars (VFW). My reason, however, is quite different: In my view we need not—indeed, cannot—decide the merits of the parties’ dis p ute, becau s e Frank Buono lacks Arti cle III standing to pursue the relief he seeks. The District Cour t had no power to award the requested relief, and our au

thority is li mited to “ ‘announcing the fact and dismissing the cause.’ ” S t eelCo. v. Ci tizens for Be tter En vironment , 523 U. S. 83, 94 (1998) (quoting E x

part e Mc C a r d le , 7 Wall. 506, 5 14 (1869)). The plurality is correct that Buono’s standing to obtain the original injunction is not before us. See ante , at 7. 1

——————

1 The Court of Appeal s’ conclusion that Buono had standing to seek the original injunction doe s not, howeve r, cont rol ourdecis i on here under t h e la w-of-t he-ca s e doct rine. Tha tdoct rine com e s int opla yonly if anissu e we ar e asked to r e solv e has alre ady been decided in the same litigat ion. See Que r nv. Jor dan , 440 U. S. 332, 3 47, n

. 18(197 9). Inits
ea rlier decis i on, t h e Nint hCircuita ddressed only Buon o’ s st an din gto seek the original injunction barringthe display of the cross on public land. See Buonov. Norto n , 371 F. 3d 54 3, 546– 54 8 (2 004). It h a d n o oc c a sionto addr ess h i s st an din gto seek an expansion of the injunctio n to bara tr an sferen ablin gth e c r o ss’ s displ a y on private property.2 SALAZAR v. BUONO
S CALIA , J ., co n c ur ringin j u d g ment Nor is Buono’s standing to request enforcement of the original injunction at issue. If h e sought only to com p el compliance with the existing order, Article III would not stand in his way. As the plurality all but admits, however, the relief Buono requests and the DistrictCourt awarded in thi s proceeding is not enforcement of the original injunction but expansion of it. See ante , at 15. The only reasonable reading of the original injunction, in contex t, is thati t proscribed the cross’s display on federal land. Buono’s alleged inju ries arose f r om the cross’s presence on publ ic property, s ee App. 50, 59, and th e injunction accordin gl y prohibited the Government, its “ e mployees, agents, an d those in active concert with [t hem]

. . . from permitting th e display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” App. to Pet. for Cert. 146a. Barring the Government from “permitting” th e cross’s display at a particular location makes s e nse on ly if the Government owns the location. As the proprietor, it
can remove the cross that private p a rties have erected and deny permi ssion to erect another. But if the land is pri

vately own e d, the Go vernment c an preventthe cross’s display only by making it ill egal

. Prohibitory legislation does not consist of a mere refu sal to “permi[t],” nor is the enactment of legislation what the injunction commanded (a command that would raise serious First Amendment and separation-of-powers questions). 2

—————— Moreove r , Buono failed to raise the is su e inh i s br ief i nopposition t o cert iora ri, a n dwe m a y deemitwa ived

. See th is Cou r t’ s Ru le 15.2; c f

. Knowlesv. Io wa , 525 U. S. 113, 11 6, n

. 2 (199 8).

2 The principal dissent doe s not dispute th at th e original injunction did not r e quir e the Gov e rnment to ban t h e c r o ss’ s displayon pr iv ate land, yet it insist s that the injuncti on nonetheless forbade transferring the land to a private party who co uld kee p t h e cros s in pla c e. Post , at 6–7 (opin i ono f S TEVENS , J.). But ther e i s no bas is in t h e injunction’s tex tfortr eatinga sale of the landto a pr iv ate pu r c h aserwh o does n o t pr omise to ta ke the c r o ss down as “per mitt ing” the c r o ss’ s displ a y ,3 Cite as: 55 9 U

. S. ____ (2010)
S CALIA , J ., co n c ur ringin j u d g ment The District Court’s 2 005 order purporting to “enforce” the earlier injunction went well beyond barring the di s play of the cross on public property. Id. , at 98a. At Buono’s request, the court enjoined certain Government officials and “anyone acting in concert with t h em
. . . from implementing the provisions of Section 8121 of Public La w 108–87,” th e statutory provision enacted afte r the original injunction t hat direc t s the E x ecu t ive Bran c hto t r ansf e r the memorial to the VFW. Id. , at 9 9a. Because Buono seek s new relief, he must show (and the District Court should have ensured) that he has standin g to pursue it

. As the pa rtyinvokin gfederal-co urt ju risdic

tion, Buono “bears the burden of showing that he has standing fo r each t y pe of relief sought,” Summ ersv. Ea rt h Island Institute , 555 U. S. ___, ___ (2009) (slip op., at 4);
see Los Angelesv. Ly ons , 461 U. S. 95, 105 (1983). A plaintiff cannot sidestep Article III’s requirements by combining a request for injunctiv e relief for which he has standing with a request for in junc tive relief for which h e lacks standing. And for the sam e reason, a plaintiff can

not ask a court to expand an existing injunction unless he has standing to seek the additional relief. Buono mus ttherefore demonstrate that the additional relief he sought—blocking the tra nsfer of the memorial to a private party—will “redress or prevent actual or imm i

nently thre atened injury to [him] caused by private or

—————— when failing to forbid the cross’s pr ese n ce o nalready-private land within the Mo jave National Preserve would not be tr eate d as suc h

. The latter no le ss involves “all ow[ing] the a c t or existence of” or “tol

era t [ing]” t h e dis p la y of t h ecros s
. Web s t e r’s New Int e rna t iona l Dic

tion ar y182 4 (2d ed. 1 957). Th e pr in c i pal di ssen tr e s p on ds th atin deter m iningwhetherthe tr ansferc o mp lies with the origi n al injunction
w e“c an n o t star t fr om a ba selin e inw h ichth e cr oss h a s alreadybeen tr ansfer r e d.” Post , at 7. B u t the effec tof tr ansfer r i ng the land to a private party free to keep the cross stan d i ng is identica l, so far a s th e original injunction is concern e d, t oallowing apa rt y who alrea d y owned the land to leave the cross in place.4 SALAZAR v. BUONO
S CALIA , J ., co n c ur ringin j u d g ment official violation of law

. ” Summers , supra , at ___ (s lip op. , at 4). He has failed , however, to allege a n y actual or imminent injury. To begin with, the predi c ate for any injury he might assert—tha tth e VFW, after taking p o s session of the land, will continue to display the cross—is at this stage merely speculative. 3 Nothing in the statutes compels the VFW (or any future proprietor) to keep it up. The land r e verts to the Government only if “th e conveyed property is no longer being maintained as a war memorial,” Pub. L. 108–87, §8121(e), 117 Stat. 1100, which does not depend on whether the cross remains. 4 Moreover, Buono has not alleged, much less established, that he will be harmed if the VFW does decide to keep the
cross. To the contrar y , his amended complaint averre d that “he is deeply offe nded by the display of a Latin Cross on government-owned property” but “has no objection to Christian symbols on private pro p erty.” App. 50. In a subsequentdeposition he agreed with the statement that “[t]he only thing that’s offensive about this cross is that [he has] dis c overed that it’s located on federa l land.” Id

. , at 85. And in a signed declaration several months later,

——————

3 Buono argues that the Government ’s continued supervision of the site, i t s r e v e r s ionar yinter e st in the pr oper ty , and the memor i a l ’ s ong o ing desig n ation as a national me mo r i al add to th e Establi s hme n t Clau se v i ola t i o n
. Br ief for Respon den t3 7–4 8. Bu t th ose aspec t s wo u l d be irrelevant if the cross were no longer dis p layed.

4 Th e pr inc i pal dissen tin si st s, post , at 4–5 , n
. 2, th at it is c l earth e cross will rem a in because t h e VFW a sser t ed in an ami c usbr ief th at it “intends to m a intain and p r eserv ethe Veter a ns M e mo r i al a s ame m o rial to UnitedSta t es veterans,” and else where refe rre d to “the seven

foot -t a l l cros s a n d pla q u e t h a tcom p ris et h e Vet e ra ns Mem o ria l ,” Brief for VFW of the United States e t al. as Amici Curiae4, 7. But t h e group’s statedintentions do not prov e thatthe cross will stay put. Th e VFW m i gh t not follow thr o ugh on it s pl an s (th i s VF W pos ta l r e a d y bec a me “defu n c t” onc edur i ngthis litig at i o n, id. , at 34); it migh t mov e t h e cros s t o a n ot her priva t e pa rcel a n d sub s titute adiffer e nt monument on Sunrise Ro ck; or it might sellthe l a nd to so meone el se who decide s to honorthe d e ad without the c r o ss.5 Cite as: 55 9 U

. S. ____ (2010)
S CALIA , J ., co n c ur ringin j u d g ment he reiterated thatalth ough the “p resence of the cross on federally owned land in the Preserve deeply offends [him] and impairs [his] enjo yment of the Preserve,” he “ha[s] n o objection to Christian symbols on private property.” Id. , a t 64–65. Inshort, even assumin gthat being “deeply of

fended” by a religious display (and taking s t eps to avoid seeing it) constitutes a cognizable injury, Buono has made clear that hewill not be offended. 5 These sam e considera t ions bearupon the plurality’s assertion that Buono has standing to “prevent the Gov

ernment from frustrating or ev ading” the original injunc

tion, ante , a t8. If this refers to frustration or evasion in a narrow sense, the inju nction is inno ne ed of —indeed, is insusceptible of—protection. Itwa s issued to remedy the sole complaint that Bu ono had br ought forward: erection of a cross on public land. Andit was entirely effective i n remedying that compl a int, having induced Congress t o abandon public ownership of the land. If meant in this narrow sense, the plurality’s assertion of a ne ed to prevent frustrationor evasion by the Government ignores t h e reality that the District Court’s 2 005 order a w arded ne w relief beyo nd the sco p e of the original injunction. The revised injunction is directed atBuono’s new complaint that the m anner of abandoning public ownership and th e

——————

5 The principal dissentargues thatde s p ite these di sclaimers in Buono’s complaint, deposit i o n , and de c l aration , h i s r e al in ju r yis h i s inabili ty “to f r eely use the area of the P r eserve around the cross be

ca us e the Government’s unc ons t itutio nal e n dorsement of the cross wi ll induce him to avoid the Sunrise Rock area.” Post , at 4–5 , n
. 2 (in t er n a l quotation mar k s and c i tatio nomitted)

. But the onl y“endor sement” of which Buono complained was “[t]he plac ement of the Cross on feder

ally-owned land,” App. 59, which “offend[s]” him only because the property “is no t open to gro u ps and individuals to erect other freestand

ing, permane n t displays, ” App. 50. No thing in Buo n o’s complaint, deposit i on, or declaration es tabl ishe s thathe will be unable “to freely use the area of the Preserve” if Sunr ise Rock is made p r ivate property and its new proprietor displays the cross.6 SALAZAR v. BUONO
S CALIA , J ., co n c ur ringin j u d g ment nature of the new pri v ate ownership violate the Estab

lishment Clause. Now it may be that a court has subject

matter juri sdiction to prevent fru s tration or evasion of its prior injunction in a broader sense—that is, to eliminate an unconstitutional manner of satisfying that prior injunc

tion. But it surely ca nnot do so unless it has before it
someone w h o has standing to com p lain of that unconstitu

tional man n er. If preventing frustration or evasion of an injunction includes expanding it to cover ad ditional ac

tions that produce no concrete harm to the original plain

tiff, our standing law in this area will make no sense. It is no answer that a district c o urt has discretion to expand an injunction it has issued if it finds the existing terms are not fulfilli ng the origina lpurpose. Doubtless i t can do tha t , and is in that sense the master of its own injunctions. But whether th e District Court abused that discretion by enlargingthe injunct i on is beside the point. What matters is that it granted relief beyon dthe existing order, and that Buono must have had standing to seek th e extension. It also mak e s no difference that the District Court sai d it was merely enforcing its originalinjunction. The ques tion is whether in fact the new order goes be yond the old
one. If so, the court must satisfy itself of jurisdiction to award the additional relief—which includes making cer tain the pla i ntiff has st anding. See Steel Co. , 523 U. S., at 94. That is true wheth e r the courtrevisits the injunction at a party’s request oron its owninitiative; Article III’s case-or-controversy req u iremen t is not merely a prerequi

site to relief, but a restraint on ju dicial power. See Su m mers , su pra , at ___ (sl i p op., at 4). 6

——————

6 I agree with J US TI CE B REY ERtha tininter p r e tingan am big u ous inj unct i on wes h ould give grea twe ight to the inter p retation of the judge who issued it. Post , at 3 (dis sentin g opinion). But that doe s not meanwe mu st ac c e pt an ycon s tr u c tiona distr i c tc o u r t plac es u p onan order it has issued. He re there is noreasonable reading of the ori ginal7 Cite as: 55 9 U

. S. ____ (2010)
S CALIA , J ., co n c ur ringin j u d g ment

* * * Keeping wi thin the bounds of our constitutional author

ity often comes at a cost. Here, the litigants have los t considerable time and money disputing the merits, and we are forced t o forgo an opportunityto clarify t h e law. But adhering to Article III’ s limits upon our juri sdiction re

spects the authority of those whom the people have chosen to make an d car r y out the laws. In this case Congress has determined that t r an sferring th e memorial to privat e hands best serves the public interest and complies with the Constitution, and t h e Executive defends that decision and seeks t o carryit o u t. Federalcourts hav e no warra nt to revisit th at decision—and to ris kreplacingthe people’s judgment with their own—unless and until a proper case has been br ought before them. This is not it.

—————— in

ju n c tionth at wou l d barth e lan dtr an sfe rbu t wou l d not also r e qu ir e the Gov e r n ment to ban “the displayof the Latin c r o ss” on privateland “in the area of Sunrise Rock in the Mojave National Preserve,” App. to Pet. forCer t

. 146 a—animpl au sible in ter p r e tationn oone adv o c a tes._________________

_________________ 1 Cite as: 55 9 U

. S. ____ (2010)
S TEVENS , J., di s s e nting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–4 72
KEN L. SALAZAR, SE CRETARY OF T H E IN TERIOR, ET AL ., PET I TIONERS v. FRAN K BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Apr il 28, 20 1 0 ] J USTICE S T EVEN S , wit hwhom J USTICE G INS B U R Gan d J USTICE S OTOMAYORjoin, dissenting. In 2002 C o ngress designated a “five-foot-tall white cross” located in the Mojave National Preserve “as a national mem o rial comm emoratin g United Stat es participation in Worl d War I and honoring the American veterans of that war

. ” Departm ent of Defense Appropriations Act, Pub. L. 107–117, §81 37(a), 115 Stat. 2278. Later th at year, in a judgment not open t o question , the District Court deter m ined that the display of that c r oss violated the Establishment Clause because it “conve y [ed] a me ssage of endorsement of religion.” Buono v. Norton , 21 2 F. Supp. 2 d1202, 1217 (CD Cal. 2002) (Bu o no I)

. The question inthis case is whether Congress’ subsequen t decision to transfer ownership of t h e propertyunderlying the cross cured that vio l ation. “The Establishment C l ause, if n o thing else, prohibits government from ‘speci fying detail s upon whi c h men an d women wh o believe ina benevolent, omnipotent Creator and Ruler of the world are known t o differ.’ ” Van Ordenv. Perry , 545 U. S. 677, 718 (2005) ( S TEVE NS , J ., dissentin g) (quoting Lee v. Weisman , 505 U. S. 577, 641 (199 2) (S CALI A , J., dissenting) ). A Latincross necessarily symbolizes one of the mos timportant tenets upo nwhichbelievers in abenevolentCreator, as well as n o nbelievers,2 SALAZAR v. BUONO
S TEVENS , J., di s s e nting are known to differ. In my view, the Distric tCourt wa s right to enforce its pri o r judg men tby enjoini n g Congress’ proposed remedy—a re medy that was engineered to leave the cross intact and th at did not alter its basic meaning. I certainly a gree that t h e Nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian mess age. I As the history recount ed by the p l urality indicates, this
case comes to us in a procedur al posture that significantly narrows th e question presented to the Court. In the fir s t stage of this litigation, the Distric tCourt andthe Court of Appeals ru led that th e Government violated the Esta blishment Clause by permitting the display of a singl e white Latin cross at S unrise Rock. Those c o urts further ruled that the appropriate remedy was an injunction prohibiting the Govern ment from “permittingthe display of the Lati n cross in t h e area of Sunrise Rockin the Mojave National Preserve.” App. 39. The Government de

clined to seek a writ of certi orari following those ruling s
. Accordin gly , for the purpose of this case, it is settled that “the Sunrise Rock cross will project a messa ge of government endorsement [of religion] to a reasonable observer,” Buono v. Norton , 371 F. 3d 543, 549 (CA9 2004) (Buono II) , and that the Dist rict Cour t’s r e medy for t hat endorsement was proper. We are, however, face d wi th an additional fact: Congress has enacted a s t atute directing the Secretary of th e Interior to transfer a 1-acre parcel of land containing the cross to th e Veterans of Foreign Wars (VF W), subject to certain con d itions, in exchange fo r a 5-a cre parcel of land elsewhere i nthe Pres erve. See Department of Defens e Appropriations Act, 20 04, Pub. L. 108–87, §8121, 117 Sta t

. 1100. The District Court found that the land transfe r3 Cite as: 55 9 U

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S TEVENS , J., di s s e nting under §8121 “violate[d] [the] court’s judgmen tordering a permanent injunction” and did not “actual ly cur[e] t h e continuing Establishment Clause violation.” Buono v. Norton , 364 F. Supp. 2d 1175, 118 2 (CD Cal. 2005) (Buono III)

. The District Court therefore enforced its 2002 judgment by enjoining t h e transfer, without considering whether “the land transfer itself is an indep e ndent violation of the Establishment Clause.” Ibid., n. 8. Because the DistrictCourt did not bas e its decision u p on an ind e pendent Es tablishmen t Clause vi olation, the constitutionality of the land-trans fer statute is not before us. Se e ante , at 10. Instead, t h e questionwe confront is whether the District Court properly enforced its 2002 judgment b y enjoining the transfer. In answering that question we, like the District Court, must first c o nsider whether the tr ansfer would violate the 2002 injunction. We m u st then consider whether changed circumstan ces nonetheless rendered enforcement of th at judgment i nappropriate; or co nversely whether they made it necessaryfor the Dis trictCourt to bar the t r ansfer, even if the tran s fer is not expressly prohibited by the pri o r injunction, in order to achieve the intended objective of the injunction. The plurality correc t ly notes th at “ ‘a cour tmust never ignore significant changes in the law or circumstances underlying an injunction,’ ” ante , at 10 (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2961, pp. 393–394 (2d ed. 1995) (herein a fter Wright & Miller)), and “ ‘[a] continuing decree ofinjunction directed to events to come is subj ect always t o adaptation as events may shape the need,’ ” ante , at 14 (quoting United States v. Swift & Co. , 286 U

. S. 106, 11 4 (1932)). 1 Atthe same time, it is axiomatic t hat when a

——————

1 One point of c o ntention: I ac c e pt as a g e ner a l matter that a c o ur t must considerwhether “legislativea c tion ha s undermined the b a s i s upon which re lief has prev iously been granted.” Ant e, at 14. Bu t th e4 SALAZAR v. BUONO
S TEVENS , J., di s s e nting partyseeks to enforce or modify an injuncti on, the only circumstan ces that matter are change d circumstan c es. See Swift , 286 U. S. , at 119 (“The injunction, whether right or wr ong, is not subject to impeachment in its application to the conditions t hat existed at its making”). I further a ccept that the Distric tCourt’s ta sk was to evaluate the changed circumstances “in light of the objec

tives of the 2002 injunction.” Ante , at 16. This case does not simply pit a plai ntiff’s “prior showing of illegality” against a defendant’s claim that “changed ci rcumstance s have rendered prospective relief inappropriate.” Ante , a t 14. That formulationimplies that the cha n ged circu mstances all cut in one direction, against prospective relief, and that th e defendant has asked the court to alleviate its obligations. But it is i m portant to note thatin this cas e , the Govern ment did n o t move to “alleviate or eliminat e conditions or restrictions imposed by the original decree” so as to permit the transfer. Wright & Miller §2961, a t 397. Rathe r , it was th e beneficiary of the original injunction who went back in to court seeking its enf o rcement or modification in light of the transf e r. Plainly, respondent had standing to seek enforcement of a decree in his favor. 2

—————— effect of the legislat ive actio nin this case is different from its effect in
our ca s e s es pous ing t h a tprinciple, which stand for the proposition th at if a statutory“right has been modified by the competent authority” since the decree, then aninjunction enfo rcing th eprior version of that
r i gh t must be modified to c o nfor m to the c h ang ein the law. Pennsyl

vaniav. Wheeling &Belmo n t Bridge Co. , 18 How. 421, 432 (18 56); s e e also Railway Em ployees v. Wrigh t , 364 U. S. 642, 65 1 (196 1) (“Ina c a se like this the D i str i c tCour t’ s author ity to adopt a consent decree comes only from the statute whic h the decree is intended to e n force

. . . . [I]t [must] be fr ee to modifythe t e r m s of a consent decree when a changein law brings those terms in conflict wi th statutory objectives”). In a
c o nstitutional c a se suc has this, legi slat iv e ac tion maymodifythe fac t s, bu t it c a n n o t ch an g eth e applic able law.

2 To the ex tentthe Gov e rnment c h a llenges res p ondent’s s t a n ding to seek the initial injunction, that is sue is not befor ethe Cour t for the reasons the p l urality state s
. See ante , at 7. Moreover, in my view5 Cite as: 55 9 U

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S TEVENS , J., di s s e nting Respondent argued that such action was necessary , either to en force the plain terms of the 2002 injunction o r to “achieve the purposes of the provisions of the decree,” UnitedS t atesv. Uni t e dShoe Ma chinery Cor p
. , 391 U. S. 244, 249 (1968); see Wright & Miller §296 1, at 393 (“[A] court must continuall ybe willin g to redraft the order at the requestof the part y who obtained equit able rel i ef i n order to insure that the decree ac complishes its intended result”). Only at thatpoint did the Govern ment argue that chan g e d circums tances mad e prospecti ve relief unnecessary. This difference in focus is a subtle one, but it is important to emphasiz e that the q u estion tha twas before the District Court—an d that is now before us—is whether enjoining the transfer was necessary to eff e ctuate the letter or logic of the 2002 judgment. Although I agree with the plurality’s basic framework , Idisagree with its decision to remand the case to the District Court. The Distr i ct Courtalready “eng age[d] in th e appropriate inquiry,” ante , at 10, and it was well within its rights to enforce the 2002 judgment. Firs t, the District

—————— r e spon den th a s st an din gev enu n d erth e an aly s is th at J US TI CE S CALIA undertakes. I tis not at all “ s peculative,” ante , a t4(opinion co ncu rrin g in judgment), that the VF Wwill co ntinue to dis p lay th e cross. VFW Post 3 85, th e ben e fic i ar yof th e lan dtr an s f er , h a s filed a n amicibrief in this c a se indic a tingit “inten ds to m a intai nand pr eserve the Veter a ns Mem o ria l ,” Brief for Vet e ra ns of ForeignWa rs of t h e Unit ed S t a t es et al. as Amici Curiae4, by wh ic hit means th e c r o ss, id. , at 7 (iden t ify

ingthe Veter a ns M e mor i al a s the “c r o ss and pla q ue”). R e spondent did, in his amend e d complaint, aver that he was offendedspecifically “by the displ a y of a Latin Cross on govern ment-owned property.” App. 50. But his c l a i me d injur yis tha the is “unable to freely use the area of th e Preserve aro u nd the cross,” Buonov. Norton , 371 F. 3d 543, 54 7 (CA 9 200 4) (Buono II)(interna l q u ota t ion ma rks omitted), b e ca us e the Government’s unco n stitutio nal endo rsement of the cross will induce him to avoid the Sunrise Rock area, eve nthough it offers the most
conve n ient ro ute to the Preserve, App. 65. Th at en dor s emen t an d respondent’s resulting injury not on lype rs is t , b u thave b een a ggrav a ted bythe Gov e r n ment’ s a c tions sinc e the c o mplaint was filed.6 SALAZAR v. BUONO
S TEVENS , J., di s s e nting Court prop erly recognized that the transfer was a means of “permitting”—indeed, enco uraging—the di splay of th e cross. The transfer therefore would violate the terms of the court ’ s original injunction. Se cond, even i f the t r ansf e r would not violate the terms of the 2002 inj unction, the District Co urt properl ytook into account events that transpired since 2002 and determined that barring th e transfer wa s necessary to achi evethe intend ed result ofthe 2002 decree, as the transfer would not eliminate government endorsement of religion. II The first s t ep in the analysis is straightforward: The District Co urt had to ask whether the transfer of t h e propertywould violate the extan tinjunction. Un der th e terms of that injunction, the answer was yes. The 2002 injunction barred the Government from “per

mitting the display of the Latin c r oss in the area of Sunr i s e R o c ki nt h e M oj a v eN a t i o n a lP r e s e rv e
. ” Ap p
. 3 9

. T h e land-transfer statute mandated transfer of the land to an organization that has announced its intention to mainta in the cross on Sunrise Rock. Thataction surely “permit[s]” the display of the cross. See 11 Oxford English Dictionar y 578 (2d ed. 1989) (defining “permit” as “[t]o admit or allow the doing or occurrence of; to give leave or opportunity for”). True, the Go ver n ment wo uld no longer exert direct control overthe cross. But the tra nsfer itself would be an act permitti ng its display. I therefore disagree with J USTIC E S CALI A thatthe “onl y reasonable reading of the original injunction . . . is that it proscribed the cross’s display on federal land.” Ante , at 2 (opinion concurring in judgment). If the land were already privately o w ned, J UST I CE S CALIA may be correct that th e cross’ display on Sunrise Rockwould not violate the injunction because the Government would no t have to do anything to allow the cross to stand, and the Government7 Cite as: 55 9 U

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S TEVENS , J., di s s e nting could try t o prevent its display only by making such a display illegal. But the Government does own this land, and the transfer statute requires t h e Executive Branch to take an affirmative a ct (trans fer to private ownership) designed to keep the cross in place. In evaluating a clai m that the Government would impermissibly “permit” th e cross’ displ a y by effecting a transfer, a court cannot start from a baseline in which th e cross has alreadybee n transferred. Moreover, §8121 was designed specifically to foster the display of the cross. Regardless of why the Government wanted to “accommod a t[e]” the interests associated with its display, ante , at 13 (plurality opinion), it was not onl y foreseeable but also int e nded that the cross would remain standing. Indeed, so far as the record indicat e s, the Gov

ernment had no other purpose for turning over this land to private ha nds. It was ther efore proper for the District Court to find that th e transfer would violate its 200 2 injunction and to enf o rce that injunction against the transfer. III As already noted, it was respondent, the beneficiary of the injunct i on, who moved the District Cour t for relief. When the beneficiary of an inj unction seeks relief “to achieve the purposes of the provisions of the decre e,” United Sho eMachine r yCorp. , 391 U. S., at 249, a district court has the authority to “modify the decree so as to achieve the required result with all appropriate expedition,” id. , at 252. Thus, regardless of whether the transfer was prohibited by the plain terms of the 200 2 judgment, the District Court pro p erly inquired into whether enjoining the tra nsfer was necessary to achieve the objective of that judgm e nt. The Government faces a high burden in arguing the District C o urt exceeded its authority. A decree “may not be changed in the interests of the defen­8 SALAZAR v. BUONO
S TEVENS , J., di s s e nting dants if the purposes of the litigation .

. . h a ve not been fully achieved.” Id. , at 248 (emphasis deleted)

. And contrary to th e Government’s position, the changed circu mstances in this case support, ra ther than count against, the DistrictCourt’s enf o rcement decision. The objective of the 2002 judgment, as the plurality grudgingly allows, was to “a voi[d] the perception of governmental endorseme n t” of religion. Ante , at 16; s ee Buono III , 364 F. Supp. 2d, at 11 78 (analyzing “ ‘wheth e r governmentaction endorsing religion has actually ceased’ ” in light of the transfer). The parties do not disagree on this point; r a ther, they dispute wh ether the t r ansfer would end government endorsement of the cross. Compare Brief for Petitioners 21 (“C o ngress’s t r ansfer of the land .

. . ends any governmental endorsem ent of the cross”) with Brief for Re spondent 34 (“[T]he government’s endorsemen t of the Christian cross is not remedied” by the land transfer). The District Co urt righ tly found that the transfer would not end governm e nt endorsement of the cross. A govern ment practice violates the Es tablishmen t Clause if it “either has the purpose or effect of ‘endorsing’ religion.” County of Alleghenyv. Americ a n C i vil Libertie s Union, Gr e a te r Pi tt sb urgh Ch ap ter , 492 U. S. 573, 59 2 (1989). “Whether the key word is ‘endorsement,’ ‘fa v oritism,’ or ‘promotion,’ the essentia l principle remains the
same. The Establishment Clause, at the very least, prohibits government from appear ing to take aposition on questions of religious belief or from ‘makin g adherence to a religion relevant in any way to a perso n ’s standin g in the political community.’ ” Id. , at 593–594 (quotin g Lynchv. Do nnelly , 465 U. S. 668, 687 (1984) (O’Connor, J ., concurring) )

. The 2002 in junction wa s based on a finding that display of the cross had the effect of endorsing religion. That is , “the Sunrise Rockcross .
. . project[s] a message of government endorsement [of religion] to a reasonable ob­9 Cite as: 55 9 U

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S TEVENS , J., di s s e nting server.” Buono I I

, 37 1 F. 3d, at 549. The d e termination that the Government had en dorsed religion necessarily rested on two premises: first, th at the Gov e rnment endorsed the cross, and second, that the cross “take[s] a position onquestions of religious belief” or “ ‘mak[es] adherence to religion relevant .

. . to a person’ s standing in the political community,’ ” Countyof Allegheny , 492 U. S., at 594. Taking the District Co urt’s 2002 finding of an Establishment Clause violation as res judicata, as we must, the land transfe r has the p o tential to dislodge only the first of those premises, in t hat the transfer might change the Government’s endorsing relationship with th e cross. As I explain b e low, I dis a gree that the transfer ordered by §8121 would in fact ha ve this result. But it i s also worth noting at the outset that the tra nsfer statute could not (a nd does not) dislodge t h e second p r emise—that the cross conveys a religious message. Continuing government endorsement of the cross is thus continuing governmentendorsement of religion. In my view, the transfer ordered by §8121 would not end governmentendorsement of the cross for two independently sufficient reasons. First, aft e r the tran s fer it woul d continue to appear to any reasonable observ er that th e Government has endorsed the cros s , notwithstanding that the name has changed on the title to a sm all patch of underlying land. Th is is particularly true because t h e Government has designated the cross as ana tional mem o rial, and that endorsement continues regardless of whether th e cross sits on public or priva t e land. Secon d , the transfer continues the existing govern ment endorsement of the cross because the purpose of the transfer is to preserve its display. Congress’ intent to preserve thedisplay of the cross maintains the Government’s endorsement of the cross. The plurality does not conclude to the contrary; that is, it does not decide that the transfer would end government10 SALAZAR v. BUONO
S TEVENS , J., di s s e nting endorsement of the cross and the religious message it conveys. R a ther, the p l urality con c ludes that the Distric t Court did not conduct an appro p riate analysis, and it remands the case for a do-over. I take up each of the purported f aults the plurality find s in the District Court ’ s analysis in my examination of the reasons why the tran s fer does not cure the existing Establishment Clause violation. Perc ep tion of the Cros s Post-Transfer The 2002 injunction was based upon a fin d ing of impermissible effect: The “Sunrise Ro ck cross .
. . project[s] a message of government endo rsement [of religion] to a reasonable observer.” Buono II , 3 71 F. 3d, a t549. The transfer wo uld not endthat impermissible st ate of affair s because the cross, po st-transfer, would stil l have “th e effect of communicating a message of gov e rnment endorsement .

. . of reli gion.” Lynch , 465 U. S., at 6 9 2 (O’Connor, J., concurring). As the Court of Appeals correctly found, “[n]othing in the present posture of the case alters” the conclusion that a “rea s onable obs e rver woul d perceive governmental endors ement of the message” the cross conveys. Buono v. Kemptho r ne , 527 F. 3d 758, 783 (CA9 2008) (Buono IV)

. 3

——————

3 The plura lity fa ults the D i s t rict Court for not enga ging in this
an aly s is, bu t th e Distr i c tC o u r t did imp l i c itly consider how a reasonable o b server would perceive the cross po st-transfer when it analyzed the ter m s of the tr ansfer , the Gov e r n me nt’s continui n gprope r ty ri gh ts in the conve y ed land, and the history of the Government’s efforts to preserve the cross. Furthe rmore, the Co urt of Appeal s affirmed th e District Court’s order on the expre ss ground that a reaso n able observer would stil l pe rceive go vernment endorsement of the cr oss. See Buo n o IV , 527 F. 3d, at 78 2– 783. T HE C HI EF J US TI CEsu gg ests th is is mu c h ado abou tn o t h in gbec a u s e respondent’s counsel conceded that th e inj unction wouldnot b eviola t ed
wer ethe Gov e r n ment to hav eg o ne thr o ugh an “emp tyr i tual” of t a king down t h e cros s b e fore t r a n sferring t h e la nd. Ant e , a t1 (concu rrin g opinion). But in the collo quy to which T HE C HI EF J US TI CErefer s ,11 Cite as: 55 9 U

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S TEVENS , J., di s s e nting In its original judgment, the Court of Appeals f o und that a well-informed reasonable observer wo uld perceive governmentendorsement of religion, notwithstanding the cross’ initial “placement by private individuals,” bas ed upon the f o llowing facts: “tha tt h e cross rests on public land[,] .

. . that Congre ss has designated the cross as a war memorial and prohibited the use of funds to remove it, and that the Pa rk Service has denied similar access for expression by an adherent of the

. . . Bu ddhist faith

. ” Buono II , 371 F. 3d, at 550. After the transfer, a well-informed observer would k n ow that the cross was no longer onpublic land, but would additionally be aware of the following facts: T h e cross wa s once on p ublic land, the Govern

ment was enjoined from permitti ng its displ a y, Congres s transferredit to a spe c ific pur c haser in order to preserv e its display in the same location, and the Governme nt maintained a reversionary interestin the land. From this chain of events, in addition to the factors thatremain the same after the transf e r, he would perceive government endorsement of the cross. 4

—————— couns el a s s u med t h a t t h e Governm e ntwou l d notret a in a revers iona ry inter e st in the land, and tha tthe c r o ss w o u l d n o t r e tain its de sig n atio n as a n a tion al memor i al. Se e Tr . of Or al Ar g
. 44–45. Ev enun derT HE C HI EF J US TI CE ’s revis e d vers ion of the hypothetica l , I would not so quickly decide that t a king down the cros s m a kes no ma teria ldifference. And counsel’s statement tak e s no posi tion as to whetherthe hy potheti

c a l pose s anyc o nstitutiona lpr oble m ind e pendent of the injunction. Reg a r d less, we must deal with the substance of the case before us, which i n volve s m u ch m o re th a nCongres s direct ing t h e Gover n m e ntt o execute a simple land transfer.

4 A less informe dreasonable o b server, see Capitol Sq uare Review and Adviso ry Bd. v. Pine tte , 515 U. S. 753, 80 7 (19 95) ( S TEVENS , J., dis s e n t

ing), wo uld re a c h the s a me conclus i on b e ca us e the cr os s would s t ill appear to st and on Go vernm e nt proper ty

. The tr ansfer mer e ly“c arv [ es] out a tiny parcel of property in the mi dst of this vast Pr eserve—like a donut hole wi th the cros s a t op it.” Buono v. Ke m p t h or n e , 527 F. 3d 758, 7 83 (C A9 200 8). Foran yr e ason able observ er , th en , th e tr an sfer simplywould not c h ang ethe effec tof the cr oss.12 SALAZAR v. BUONO
S TEVENS , J., di s s e nting Particularl y important to this analysis is that although the transfer might re move the implicit endorsement that presence on public land signifies, see Capitol Square Review andAdvisory Bd. v. Pine tte , 515 U. S. 753, 801 (1995) (S TE VENS , J., dissenting) (“The very fa ct that a sign is installedon public property implies officia lrecognition and reinforcement of its message”), it would not chan ge the factth at the Gov e rnment has taken s e veral explici t actions to endorse this cross. In it s decision upholding the initial entry of the injunction, the Court of Appeals found those actions contributed to a reasonable ob server’s perception of go vernment endorsement. Buono II , 371 F. 3 d , at 550. Th eir significa n ce does n o t depend upon the ow nership of the land. In 2000, and again after the District Court h a d entered its initial injunction, Congress passed legisl ation prohibiting the use of any fede ral funds to remove th e cross fro m its location on federal property. See Consoli d ated Appropriations Act, 2001, Pub. L. 106–554, App. D, §133, 114 Stat. 2763 A–230; Department of Defense Appropriations Act, 2003, Pub. L. 1 07–248, §8 065(b), 116 Stat. 155 1. Thus, beyond merely acquiescing in the con t inued pres

ence of a cross on federal property, Congress singled out that cross for special t r eatment, and it affirmatively commanded that the cross must remain. Congress also made a more dramatic intervention. Without the benefit of any co mmittee hea r ings or flo o r debate in e i ther the Senate or th e H o use of Representatives—indeed, without a mome nt of discussion in any official forum—Congre ss passed legislation officially designating the “five-foot -tall white cross” in the Mojave Desert “as a national memorial c o mmemorating United States pa rticipation in World Wa r I and honoring the American veterans of t hat war.” §8137(a), 115 Stat. 2278. Thereafter, the cross was no longer just a loc a l artifact; it acquired a formal national status of the highest order.13 Cite as: 55 9 U

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S TEVENS , J., di s s e nting Once tha t momentous step was taken, chan ging the identity of the owner of the underlying land could no longer change the public or private cha r acter of th e cross. The Government has expressly adopted the cross as its own. 5 Even though Congre ss recognized this cross for its military as sociations, the solitary cross conveys an inescapably sectarian message. See Se para tion of Church and State Comm. v. Euge ne , 93 F. 3 d617, 626 (CA9 199 6) (O’Scannlain, J., concu rring in result) (“[T]he City’s use of a cross to memorialize t h e war dea dmay lead observers to believe that the Cit y has chosen to honor only Christi a n veterans”). As the District Cour t observed, it is undisputed that the “[L]atin cross is the preeminent symbol of Christianity. It is exclusiv ely a C h ristian symbol, and n o t a symbol of any other r e ligion.” Buono I , 212 F. Supp. 2d, at 1205. We have recognized the significance of the Latin
cross as a sectarian symbol, 6and no participant in this

——————

5 The plurality barely mentio ns this de sig n ation , ex c e pt to asser tth at t h e des i gna t ion gave recog n it ion t o t h e historical me aning of the cross. See ante , at 12. Bu t th e pl u r alitydoes not acknowledge that when the Ninth Circuit affirmed the 2 002 judg ment, itc o nc luded that the de sig

nation is one of the factors that would le ad a reasonable observer to perceive go vernment endorsement of religi o n. See Buono II , 37 1 F. 3d , at 55 0. Nor d oes th e p l u r ali t yaddr es s th e effec tof th at desig n ationon a reasonable observer’s perception of t h ecros s , rega rdl e s s of whet he r the cross sits on private land. See ante , at 16.

6 See , e.g ., Pin e tte, 515 U. S., at 7 60 (c h a r a c t er izin gKu Klu xKlan

spon sor e d c r o ss as r e ligiou s speec h) ; id. , at 776 (O’ C on n o r , J., c o n c urring in pa rta n d con c ur ringin j u dgm e nt) (“ [T]he cros s is a nes pecia l ly potent sec t ar i a n sy mbol”); id. , at 792 (Sou ter , J., c o n c u rrin ginpar tand
conc urri ng in j u dgm e nt) (“ [T]he La t i n cross
. . . is t h e pr incipa l s y mb ol of Christianity around the world, and dis p lay of the cross alone could
n o t r e ason abl ybe takento h av eanysecu larpoin t”); id

. , at 798, n

. 3 (S TEVENS , J., dissenting) (“[ T]he Latin cro ss is identif i ab le as a sym b ol of a par t ic u l arr e ligion , th at of Ch r i stian i ty ; an d, fu r t h e r , as a sy mbol of par t ic ulardenominations wi thin Chr i stianity”); County of Alle ghe n yv. Am erica n Civil Lib erties U n ion, Greate r Pi ttsb u r gh Cha p ter , 492 U. S. 573, 6 61 ( 1 9 8 9 ) (K ENNEDY , J ., conc ur rin gin j u dgm e n tin pa rta n d dissenting inpart) ( “ [T]he [Establis h m e n t] Clau se fo rb ids a c i ty t o14SALAZAR v. BUONO
S TEVENS , J., di s s e nting litigation denies that t h e cross bears that social mean ing. Making a plain, unadorned Latin cross a war memorial does not make the cro ss secular. It makes th e war memorial sectarian. 7 More fundamentally, however, the message conveyed b y the cross is not open to reco nsideration given the postu r e of this case. The plur ality employs a revealing turn of phrase when it charact e rizes the c r oss as “a symbol that, while challenged under the EstablishmentClause, h a s complex meaning beyond the expression of religiou s views.” Ante , at 13. The days of considering the cross itself as challengedunder the EstablishmentClause ar e over; it is s e ttled that the Go vernment is not permitted to endorse the cross. Ho wever com p lex the m e aning of the cross, the Court of Appeals in 2 004 consid ered and rejected the argument that its dual symbolis m as a wa r memorial meant thatgovernment endorsement of the cross did not amount to endorsement of r e ligion. S ee Buono II , 3 71 F. 3d, at 549, n. 5. All we are debating at

—————— permit the permanent erection of a la rge Latin cross on the roof of city ha ll .

. . b e ca us e s u ch a nobtrus ive yea r -r ound religious dis p la y would pla c e the government’s weight b e hindan obvious effort to proselytize on behalf of a particular religion”).

7 Con t ex t is c r itic al to th e Est abli s h m en tClau se in qu ir y , an d n o t every use of a religious sy mbol in a war memorial w o uld indicate government e n dorsement of a religious m e ssage. See , e. g ., VanO r de n v. Pe rry , 545 U. S. 677, 70 1 (200 5) (B REY E R , J., con c ur ri ng in judgmen t) (“[T]o deter m i n e the messa g ethat the tex ther ec o nvey s, we must examine how the text i s used

. And th at inquiry requires us to consider the context o f the display”) ; Countyof A llegh eny , 492 U. S., at 598 (“[T]he effect of a crèche display turns on its setting”) ; Lynchv. Do n nelly , 465 U. S. 66 8, 6 94 ( 198 4) (O’ C on n o r , J., c o n c ur r i n g) (“Ev ery g o v e rn men tpr ac tic emu st be ju dg ed in its u n i qu e c i rc u m stan c e s to det e rm ine whet her itcons tit u t e s a nend o rsement or disapprovalof religion” ). B u tt h is cros s is notm e relyo n e pa rtof a m o re elab o ra te monument that, taken as a whole, maybe under stood to c o nv eya primarily nonreligious me ssage. Rather, the cro ss is the only symbol
c o n v ey in g an y messag eat a l l.15 Cite as: 55 9 U

. S. ____ (2010)
S TEVENS , J., di s s e nting this junctu re is wheth e r the shiftfrom public to p r ivateownership of the land sufficiently distanced the Government from the cross; we are no l o nger debating the me ssage the cross conveys to a reasonable obs e rver. In arguing that Congress can legitimately favor the c r oss because of its purported double meaning, the plurali t y implicitl y tries to reopen what is closed. 8 The plurality also pos e s a different objection to consideration of whether the transfer wou l d change areasonable observer’s perception of the cross. The plurality suggest s that the “ ‘reasonable observer’ sta n dard” ma y not “be the appropriate framework” because “courts considering Establishmen t Clause ch allenges do not,” as a general ma tter, “inquire into ‘reas o nable obs e rver’ perceptions with respect to objects on private lan d .” Ante , at 16. On ce again, the plurality’s approach fails to pay heed to the posture of this case. At the risk of stating the obvio u s, respondent is not simply chal lenging a private object on pri v ate land. Although “a n Establishment Clause violation must be moored in governmentaction of some sort,” Pinette , 5 15 U. S., at 77 9 (O’Conno r, J., concurring in part and concur­

——————

8 Th e plu r ality ’ s a sser t ion s r e g a r d ing the meaning of the cross are therefore beside the point. For the record , howeve r, I ca nnota gree t h a t a bar e c r o ss su c has th is c o n v ey s a n o n s ec tar i an m e an in g simpl y because crosses are of ten used tocommemorate “he r oic acts, noble contrib u tions , a n d pa tient s t riving” a n d to honor fa llen s o ldiers

. Ante , a t17

. The cros s is not aunivers a ls y m b ol of s a crifice. It is t h e s y m b ol of one pa rt icu l a rs a crifice, a n d t h a ts a crifice ca rries dee p ly s i gnifica n t meaning for th ose who adhere to the Christian fai t h. The cross has someti mes bee nused, it is tr ue, to r e pr esent the s a c r i fic eof an indiv i d

ual, as when i tmarks the grave of a fallen soldier or recognizes a sta t e trooper who p e rished in the line of dut y
. Even t h en, t h e cros s ca rries a religious m e aning. Butt h e us e of t h e cros s in s u ch circum s t a nces is lin ked to, an dsh ow s r e spec ts for , the in dividua lhonoree’s fa ith a n d beliefs. I, too, would consider it tr agic if the Nation’s fallen veterans
wer eto be forg otten. See ibid

. But there are countles s different ways , c o nsistent wit hthe Constitution, thatsuch an outcome m a y be averted.16 SALAZAR v. BUONO
S TEVENS , J., di s s e nting ring in judgment), respondent’s objection to the transfer easily meets that test for two reasons. First , he is currently challenging official legi s l ation, taken in response to an identified Establishment Clause violation. That legis

lation would transfer public land to a particular privat e party, with the proviso that the transferee must use t h e land to fulf ill a sp ecifi cpublic function or else the land reverts bac k to the Government. Second, e v en once t h e transfer is complete, the cross would remain a national memorial. The cross is therefore not a pur e ly “private ” object in any meaningful sense. Notwithsta nding these facts, the plurality appears t o conclude that the transfer might render the cross purely private spe e ch. It relies in part on the plurality opinion i n Pinettefor its suggestion that the reasonab le obs e rver standard may not be apposite, and Pinetteaddressed a privately o w ned cross displayed in a public forum. The Pinette plu r ality would have rejected the idea that “a neutrally behaving government” can ever endorse “ priva t e religious expression,” id ., at 76 4, even if a reasonab le observer would perceive government endorsement, id. , a t 768. But the Pinette plurality acknowledged that government favori tism of priv ate re ligious speech is unconstitutional, as when a government “giv[es] sectarian religious speech preferential access to a forum close to the seat of government(or anywh ere else forthat matt er).” Id., at 766. And in this case, the Go vernment is not acting neutrally: The transfer statute andthe government actions preceding it have all favored the cross. Furthermor e , even assuming (wro ngly) that the cross would be p u rely priva t e speech after the transfer, and even assuming (quite implausibly) that the transfer statute is neutral with re spect to the cross, it would still be appropriate for the District Co urt to apply th e reasonable observer standard. The majority of the Pine t t eCour t rejected the pe r se rule proposed by the plurality. Instead,17 Cite as: 55 9 U

. S. ____ (2010)
S TEVENS , J., di s s e nting the relevant standard provid es that the Es tablishmen t Clause is violated whenever “the State’s o w n actions .

. . , and their relationship to the private speech at issue, actu

ally conveya message of endor s ement.” Id. , at 777 (O’Connor, J., concurring in part and concurring in judgment). Moreover, the Establishment Clause “imposes affirmative obligations that may require a State, in som e situations, to take ste p s to avoid being perceived as supporting or endorsing a private religious mess age.” Ibid. It is particularly approp riate in this context—wh en the issue is whether the transfer cures an already identified Establishment Clause violat ion—for the District Court to co nsider wheth e r the Government , by complying with §8121, would have taken sufficient step s to avoid being perceive d as endorsing the cross. As I explained at the outset of this section, the answe r to that inqu iry is surely no. The re asonable ob server “who knows all of the pertinent facts and circum s tances surrounding the symbol an d its placement,” ante , at 17, wou l d perceive that the Gov e rnment has endorsed the cross: It prohibited the use of federal funds to take down the cross, designated the cross as a national memorial, a n d engaged in “herculean efforts to preserve the Latin cross” following the Distric tCourt’s initial injunction, Buono I I

I

, 36 4 F. Supp. 2 d , at 1182. Those efforts include a transfer statute designed to kee p the cross in place. Changing th e ownership status of t h e underlying land inthe mann er required by §8121 would not c hange the fact that the cros s conveys a message of government endorseme n t of religio n. Purpose in Enac ting th e Tr ansfe r Sta t ute Even setting aside that the effect of the post-transf e r cross would still be to conveyamessage of government endorsement of religion, the District Court was correct t o conclude that §8121 would not cure the Establishmen t Clause viol ation becau s e the very purpose of the transfe r18SALAZAR v. BUONO
S TEVENS , J., di s s e nting was to preserve the display of the cross. That evident purpose maintains gov e rnment endorsement of the cross.The plurality does not really contest that this was Congress’ purpose, ante , at 11, so I need not review the evidence in gr eat detail. Suffice it to say thatthe record provides ample support. The lan d -transfer statute auth o rizes a conveyance to the partic u lar recipient that has expressed an intent to preserve the cross. See Brief for Veterans of Foreign W a rs of the United States et al. as Amici Curi ae4 (trans fer recipient “intends to maintain and preserve the Veterans Memorial”); id. , at 7 (identifying Veterans Memorial as th e “cross and plaque”). And it conveys the particular land that has already been designated “as a national m e morial” commemorating the veterans of World War I, §8 121(a), 117 Stat. 1100, subject to a reversionary clause req u iring that a memorial “commemorating Unit ed States participatio nin World War I and honoring the American veterans of that war” be main

tained, §8121(e). If it does not categorically require the new owner of the prop erty to display the exis ting memorial meetin g that description (the cross), see §8137, 115 Stat. 2278, the statute most certainly encourages this result. Indeed, the Governme nt concedes th at Congress sought to “ pres erv ea longstanding war mem o rial” at the site, Brief for Petitioners 28 (emphasis added), and th e only memori al that could be “preserved” at Sun r ise Rock is the cross itself. The plurality insists, however, that even assuming the purpose of the land transfer was to preserve the display ofthe cross, enjoining the transfer was not necessarily appropriate. It contend s the District Court failed to give adequate consideration to “the con t ext in which the [landtransfer] statute was enacted and the reasons for its passage,” ante , at 11, an d it directs th e DistrictC o urt’s at tention to three factors: the message intended by the privat e citizens who first erected the cross, ibid.; the time the19 Cite as: 55 9 U

. S. ____ (2010)
S TEVENS , J., di s s e nting cross stood on Sunrise Rock and its historical meaning, ante , at 11– 12; and Congress’ balancing of “opposing interests” and selection of a “policy of ac commodation,” ante , a t 13; see also ante , at 17. The first t w o of these factors a r e red herr ings. Th e District Co urt, in its enforceme nt decision, ha d no occasion to consider anew eith er the private message intended by those who erected the cross or h o w long th e cross had stood atop Sunrise Rock. Neither of these factors constituted a novel or chang ed circumstance since the entry of the 2002 injunction. Whatever message th ose who in itially erected the cross intended—and I think we have to presume it was a Chri stian one, at least in part, for th e simple reas on that tho s e who erected the cross chose tocommemorate American veterans in an explicitly Christian manner—that historical fact did not change between 2002 and 2005. I gran t that the a m ount of time the cross had stood on Sunrise Rock did cha n ge, from 6 8years to 7 1 years, but no one can seriously maintain that “the historical meaning that the cross had attained,” ante , at 12, wa s materially transformed in that 3-year increment. 9

——————

9 I also disagree with the pl urality’ s factu a l premi s e that “the cross and the c a use it c o mmemor a ted had become entwined in the public
cons cious n es s ” in a s e cula r m a nner, ante , at 11 –1 2. Al th ou ghsom e member s of t h e c o mmunity knew th at the cross had been originally erected as a war memorial, there is nosup p ort in the record for the idea that member s of the public “g ather e d regu la rly a tS unris e Rock t o pay their respects,” ibid ., t o t h e fa llen of World Wa r I or a n y ot her vet e ra ns
. The s t udy conducted b yaNa tion a lPa r kS e rvice his t oria n indica tes th at agr ou p of v e ter a n s g a th er ed at th e c r o ss as e a r l yas 19 35 f o r Ea st er s unris e s e rvices

. Mem o ra ndumfromMa rk Luellen t o S u perinten d en t, M ojav eNation al P r eserv e(Jan

. 31, 20 00), De c l . of PeterJ. Elia sberg in Buonov. Norto n , No. EDCV 01– 21 6–RT (C D Cal., M a r. 13, 200 2), p. 20 ( E x h . 7). Bu tth er e is n oe v iden c eth at g a th er in g s wer e ever held for Armistice Day or Vetera ns D a y. The s t udyfurther revea l s t h a taloca l club orga nized s o cia lev ents forthe c o mmunityat the c r o ss fr om 1950 to 197 5 an d th ataftera loc a l v e ter a npasse d awayin1984, the “memor ya n d assoc i a t ion s of the white c r o ss .
. . as a warmemor i al”20 SALAZAR v. BUONO
S TEVENS , J., di s s e ntingThis brings us to the final factor identified by the plurality: Cong ress’ “policy o f accommod ation” for t h e cross. 10O f course, the Distric tC o urt did consider Congress’ “poli c y” in the sense that it considered the result Congress was tryingto ac hieve with r e spect to th e cross, i.e. , to keep it in place. See Buono III , 364 F. Su pp. 2d, at 1182 (“[T]h e proposed transfer of the subject property can only b e viewed as an attempt to keep the Latin cross atop Sunrise Rock witho u t actuallycuring th e continuing Establishment Claus e violation”). But I understand the plurality to be faulting the District Court for failing to in quire into a deeper leve l of motivation: If thepurpose of the transfer was to k eep the cross in place, what was the purposeof k eeping the cross in place? I do not see whyit was incumbent upon th e Distri c t Court to examine this second-order purpose when determining whether the tra nsfer violated the 2002 injunction. As discussed in Part II, supra , the injunction barred th e Government from per m itting th e display of the cross, which fairl yencompas ses any act providing an opportunity for the cross’ displ a y. It was entirely appropriate fo r the Distric tCourt to chara cteri ze a transfer with t h e purpose of preserving the cross as an attempt to evade that injunction, and to f i nd that the Government’s purpos e to preserve the cross maintains governmentendorsement of the cross.

—————— faded butloc a ls were “ i nspired .

. . to reinstate the Easter sunrise
s e rvices ” a tt h e cros s
. Ibid.

10 Althoughthe plur alityuses the ter m“ac c o mmodation ,” I do not
r e ad its opin ionto su gg est th at Con gr e ss’ polic yv i s-à-v i s th e c r o ss h a s an y t h i n gto do withac c o m m odat in gan y in div i du al’ s r e ligiou s pr ac tic e
. Cf. County of A lle gh en y , 492 U. S., at 60 1, n
. 51 (“ Norc a nth e disp lay of t h e crèche b ej u s t ified a s a n‘a ccom m o da t i on’ of religion.

. . . To b es u re, prohibiting the display .

. . deprives Chri stian s of the sati sfaction of seeing the go vernment adopt their re ligio us message as their own, but this kind of government affiliation wi th pa rticular religio us mess ages is precisely what the Establis h m ent Clause p r ecludes”).21 Cite as: 55 9 U

. S. ____ (2010)
S TEVENS , J., di s s e nting The plurality would have the District Court revise its entire analysis of whether th e transfer would end government endorsement, in light of the plurality’s view of the land-transf e r statute’s putative second-order purpos e. That analysis ignores the proced ural posture of the case. If the question before t h e Court were whether §8121 itself violated the Establish m ent Clause, then th is argument might have merit. But we are instead examining whethe r action tak e n with the purpose of preserving the display of the cross cu res or conti nues gover n ment endorsement. In my view, that purpose continues the impermissible en dorsement of—indeed, favoritism towar d—the cro ss, regardless of whyCong ress chose to intervene as it did. In any even t, Congress’ second-order purpose does little for the plur ality’s position. Without relying on any legislative history or findin gs—there are none—the plurality opines that Congress wanted to k eep the cross in place in order to accommodate those who might view removal as “conveyingdisrespect for those the cross was seen as honoring,” ante , a t12, and it suggests that this decision was an acceptable method of “balanc[ing] opposing interests” because the cross “has complex meaning beyond the expression of religious views,” an te , at 13. As I have already explained, the meaning of the cross (complex or otherwise) is no longer before us, and the plu r ality’s reliance on a “congressional statem ent of policy,” ibid. , as negating an y governme nt endorsement of religion finds n o support in logic or precedent. The cross cannot tak e on a nonsectarian character by congres s ional (or j u dicial) fiat, and the pl urality’s evaluation of Congress’ actions is divorced from the methodology prescr ibed by our doctrine. 11

——————

11 J US TI CE ALIT Os i m i la rly a ffords grea tweightt oCongres s ’ purport e d interest in “ a voiding the disturbi ngsy m b olis m a ssoc i ated with the destruction of the historic monument.” Ante , a t5 (opinion con c ur ri ng in pa rta n d concu rrin gin j u dgm e nt). Butwe s u rely a ll ca n a gree t h a t once the gove rnment has violated the E s tabli s hment Clause, a s ha s22 SALAZAR v. BUONO
S TEVENS , J., di s s e nting Our precedent provide s that we e v aluate purpose based upon what the objective indicia of intent would reveal to a reasonable observer. See McCre a ry Countyv. Americ a n Civil Lib e rties Union of Ky., 545 U. S. 844, 862 (2005) (“The eyes that lookto purpose belong toan objective observer, one who takes account of the traditional external signs that show up in the text, l e gislative history, and implementa tion of the statute, or comparable official act” (internal q u otation m a rks omitted)). “[R]easonable observers have reasonable memories, and ou r precedents sensibly fo rbid an observer ‘to turn a blind eye to the context in which [the] policy arose.’ ” Id. , at 866 (quoting Santa Fe Independen tSchool Dist. v. Doe , 5 30 U. S. 290, 315 (2000)). The plurality nowhere engages with how a reasonable observer would view Congress’ “policy of accommodation” for this cross. Instead, the plurality insists that defere nce is owed becaus e of “Congress’s prerogativeto balance opposing interests and its institutional competence to do so.” Ante , at 13. The proper remedy for an Establ ishment Clause violation is a l e gal judgme nt, which is not the sor tof issue f o r which Congress “ ‘has both wisdom and experience .

. . tha t

—————— beenadju dg ed inth is c a se a n d is n o w beyon dqu estion , a plain t iff mu st be affor d ed a c o mplete r e m e dy

. That r e medymay so metime s r e qui r e r e mov i n ga r e ligiou s sy mbol , an d r e gr ettablysome n u m berof people mayper c e iv e the r e medyas ev idenc ethat the g o v e r n ment “is bent on eliminat ing from all public places and symbols any trace of o u r country’s religious heritage,” ante , at 4. Bu tit does n o tf o llow th atth e government can decline to cure an Estab lishment Clau se viola t ion in order to avoid offense. It may be th e c a se that takingdown the sy mbol is not the only remedy. The properreme dy, like the d e termination of the violation i t self, is necess a r ily cont ext specific, and eve nif it involves moving the cross, i tneed no t involve the “demolition” or “destruction” o f the cross, see ante , at 4, 5. Reg a r d less, in this case the only question b e fore us is whet her t h is pa rt icul ar transfer provided a complete remedy. We have no wa y of knowing w h ether Congr e s s ’ motiva tion was to minimi ze offense, butin any event that interest d oes not amelio

r a te th e r e medial in effec t iv en ess of §8121.23 Cite as: 55 9 U

. S. ____ (2010)
S TEVENS , J., di s s e nting is far superior to ours.’ ” Citizens United v. FEC, 558 U. S. ___, ___ (2 010) (S TEVENS , J., dis s enting) (slip op., at 71) (quoting Colorado Republican Federal Cam paign Com m
. v. FEC, 51 8 U. S. 604, 650 (1996) (S TEVE NS , J., dissenting)). More over, the inference thatCongress h a s exercised its institutional competence—o r even its considered judgment—is significantly weaker in a case such as this, when the legislative action was “buried in a defense appropri ations bill,” Buono III, 364 F. Supp. 2d, at 11 81, and, so far as the recor dshows, undertaken without an y deliberation whatsoever. I am not dismissive of Congress, see ante , at 7 (opinion of ALITO , J

. ), but §81 21 presents no factua l findings, reasoning, or long history of “ ‘careful legislativ e adjustment,’ ” Ci tizens United , 558 U. S., at ___ (S TEVEN S , J., dissenting) (slip op. , at 71) (qu o ting FEC v. Beaumon t , 539 U. S. 1 46, 162, n. 9 (2003)), to which I could possibly defer. Con gress did n o t devote “ y ears of care ful study” t o §8121, Citi zens Uni t e d , 558 U. S., at ___ (S TEVENS , J., dissenting) (slip op., at73), nor did it develop a record of any kind, m u ch less an exhaustive one, see id. , at ___ (slip op., at 20) (noting the legislative record for th e Bipartisan Campaign Reform Act of 2002 s p anned 100,000 page s). The concurrence’s attempt to draw an equ i valence between a provision tuck ed sile ntly into an appropriations bill and a major statute debated and developed over many years is, to say the least, not persuasive. All legislative acts are not fungible. Furthermor e , in the Establishment Clause context, we do not accord any spe c ial deference to the legislature on account of its generic advantages as a policymaking body, and the pu rpose test is not “satisfied so longas anysecular purpose for the government action is apparent,” McCr eary County , 545 U. S., at 865, n. 13 (emphasis added). Nor can the Government pursue a secular aim through rel i gious means. See Van Ord e n , 545 U. S., at 715 (S TEVE NS , J., diss enting) (“Though the State of Te xas24SALAZAR v. BUONO
S TEVENS , J., di s s e nting may genuinely wish to combatj u venile delinquency, and may rightlywant to honor the Eagles for their efforts, it cannot effectuate these admirable purposes through a n explicitly re ligious medi um”). It is odd that the plurality ignores all of these well-settled principles in exalting thi s particular l e gislative determination. A reasonable observer, considering the natu r e of this symbol, the timing and the substance of Congress’ efforts, and the history of the Sunrise R o ck site, could conclude that Congress chos e t o preserve the cross p r imarily because of its salience as a cross. Cf. McCrea ry County , 545 U. S., at 8 73 (“If the observer had not th rown up h i s hands, he would prob ably suspect that the Counties were simply reaching for any way to keep a religious document on the walls .

. .”). But no such c o nclusion is necessary to find for respondent. 12 The religious meaning of the cross was settled by the 2002 judgment; the only question befor e us is whether the Go vernment h a s sufficiently distance d itself from the cross to end government endorsement of it

. At the leas t, I stress again, a reasonable ob server would conclude th at the Gov e rnment’s purpose in transferri ng the underly ing land di d not suffic i ently dista n ce the Government from the cross. Indeed, §8121 evidenced concern for whether the cross would be displayed. The Distri ct Court was t h erefore correct to find that the tra nsfer would

——————

12 I hav enot “ju m p[ed] to the c o nc lu sionth at Con gr e ss’ ai m inen ac ting the land transfer law was to em brace the religious message of the
cros s
. ” Ante , at 7 (opinion of ALITO , J.). I th in k a r e a s o n able o b serv er c o uld c o me to that c o nc lusion, but my point is that so long as weagree that Congr e ss’ aim was to pr eserv ethe cr oss (whic hJ US TI CE ALITO does not dis p ute), Congres s ’ rea s on for pr eservi ng the cross does not matter

. Butif we were deb a t ing wh et her Congres s ha d areligious purpos e in pass in gth e tran sferstatu t e , I w o u l d co ntest the relevance of the vote c o unt to that inquir y , see ante , at 6, an dpar t ic u l ar lys ointh is c a se. One ca nnot in fer much of a n ything ab o utthe la nd-tra ns fer provis ion from the fact that an ap propriatio ns b ill passe d by an overwhelming major i ty

.25 Cite as: 55 9 U

. S. ____ (2010)
S TEVENS , J., di s s e nting not end government endorsement of religion. IV In sum, I c o nclude that the transfer ordered by §8121 will not en d the pre-existing government en dorsement of the cross, a n d to the co ntrarymayaccentuate the p r oblem in some respects. Because the transfer would perpetuat e the Establishment Clause violation at issue in the 2002 injunction, I further co nclude thatenjoining the transfe r was necessary to secu re relie f. Given the transfer statute’s fundamental ina d equacy as a remedy, there was

— and is—no need for the DistrictCourt to c o nsider “less drastic relief than complete inv a lidation of the .

. . statute.” Ante, at 18. Allowing the transfer to go forward would interfere withthe Dist rict Cour t’s authority t o enforce its judgment a n d deprive the DistrictCourt of th e ability to ensure a complete rem e dy. Nor could all o wing the transfer to go forward be made a complete remedy with add-o nmeasures, such as signs or fences indicating the ownership of the land. Su ch measures would no t completely end the gov e rnment endorsement of this cross, as the lan dwould have been transferred in a manner favoring th e cross and the cross would remain designated as a national memoria l

. Enjoining compliance with §8121 was therefore a proper exercise of the District Court’s authority to enforce the 2002 judgment.

* * * Congressional action, taken after due deliberation, that honors our fallen soldiers meri ts our highest respect. A s far as I ca n tell, however, it is u n precedent e d in the N a tion’s history to designate a bare, unadorned cross as the national war memorial for a pa rti cular group of veterans. Neither the Korean War Memorial, the Vietnam War Memorial, nor the World War II Memorial c o mmemoratesour veterans’ sacrifice in sectarian or predominantly religious ways

. Each of these impressive structures pa ys26 SALAZAR v. BUONO
S TEVENS , J., di s s e nting equal respect to all m e mbers of the Armed Forces who perished in the service of our Country in those conflicts. In this case, by contras t , a sectarian symbol is the memorial. And because Congress has establis hed no other national monument to the veterans of the Gre a t War, thi s solitary cross in the middle of t h e desert is the national World War I memorial. The sequence of legislative decisions made to designate and preserve a s o litary Latin cross at anisolated location in t h e desert a s a memorial for those who fought and died in World War I not only failed to cu re the Es tablishment Clause violation but al so, in my view, resulted in a dramatically inadequate and inappropria t e tribute. I believe t hat most judges would find it to be a clea r Establishment Clause violationif Congress had simply directed th at a solitary Latin cross be erected on the Mall in the Nation’s Capital to serve as a World War I Memorial. Congress did not erect this cross, but it commanded that the cr oss remain in place, and it gave the cross the imprimatur of Govern ment. Tra n sferring the land pursuant to §8121 would perpetuate rather th an cure that unambiguous endorsement of a sectarian message. The Mojav e Desert is a remote location, far from the seat of our Government. But the Government’s interest in honoring all those who have rend ered heroic p ublic service regardless of creed, as well as its constitutional responsibility to avoid endorsement of a p a rticular re ligious view , should con trol wherever national memori als speakon behalf of our entire country. I respectfully dissent._________________

_________________ 1 Cite as: 55 9 U

. S. ____ (2010)

B REYER , J., diss enting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–4 72
KEN L. SALAZAR, SE CRETARY OF T H E IN TERIOR, ET AL ., PET I TIONERS v. FRAN K BUONO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Apr il 28, 20 1 0 ] J USTICE B RE YE R , dissenting. The District Court in this case entered a permanen t injunction forbidding the Go vernment to “permi[t] the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” App. 39. Subsequently, Government authorities cove red t h e cross with a plywoo d box so that it could not be seen. C o ngress then enacted a statute dire cting the S e cretary of the Interior to convey t o a private entity approximately one acre o f land upon which the cross stood, presumably so that the cross could be displayed uncovere d

. The pl aintiff, returning to the District Court, asked t hat court to “ ‘hold thatthe transfer violates th e .
. . injunction.’ ” Buonov. Norton , 364 F. Supp. 2d 1175, 1177(CD Cal. 2005) (quoting plaintiff’s motion). The court held that it di d. Id., at 1182. And the question before us is whether the law permits the Distric t Court so to interpret it s injunction. To answer this question we need not address any sig

nificant iss u e of Estab lishment Clause law. Because the Government has alrea d y lost the case, taken an appea l , and lost th e appeal, we must ta ke as a give n the lower court’s resolution of t h e Establishment Clause question before the land transfe r. Tha tis to say, as the plurality points out, ante , a t9, we must he re assume that the origi

nal display of the cross violated the Constitution because2 SALAZAR v. BUONO

B REYER , J., diss enting “the presence of the cross on fede ral land conveys a mes

sage” to a“reasonable observ er” of govern mental “en

dorsement of religion.” Buonov. Norton , 212 F. Supp. 2d 1202, 1216–1217 (CD Cal. 2002). See Travel ers Indemni t y Co. v. Ba il ey , 557 U. S. ___, ___ (2009) (slip op., at 14) (once orders become final on direct review, t h ey are res judicata to the parties). For the same reason, we must here assume that the plainti ff originally had standing to bring the lawsuit. Ante , at 7; see also ante , at 1 (S CALI A , J., concurri ng in judgment); Tra v elers , sup r a , at ___ (slip op., at 14) (orders are no less pre c lusive when the collat

eral attack is jurisdictional). An d, as the plurality also points out, the plaintiff consequently has sta n ding now to seekenforcement of the injunction. Ante , at 8–9; see als o Allenv. Wri ght , 468 U. S. 737, 763 (1984). Moreover, we are not faced with the questi o n whether changed circumstances require modification of the injunc

tion. The Government did not a s k the Dist rict Cour t t o modify it. In fact, the Govern ment didnot as k the Distri c t Court for any relief at all. Rather, it was the plaintiff who asked the District Cour t either (1) to “ ‘hold th at the [land] transfer violates the current injunc tion,’ ” or (2) to “ ‘modify that injunction to prohibit the land transfer because it violates the Establishment Clause.’ ” 364 F. Supp. 2d, a t 1177 (quoting plaintiff’s motion). The District Court di d the former, i.e. , it interpreted the injunction as prohibiting the Govern ment from t r ansferring the land for purposes of displaying the cross. And having granted th e plaintiff’s request to enforce the injunction, it dismissed the plai n tiff’s alternative request to modi fy the injunction as mo ot. Thus, as I said at the o u tset, the only question before us is whether the law permits the District Courtto hold that the land transfer (presumably along with th e subsequ e nt public display of the cross) falls within the scope of its original inj unctive order, an order that says the Govern

ment must not “permi[t] the display of the L a tin cross in3 Cite as: 55 9 U

. S. ____ (2010)

B REYER , J., diss enting the area of Sunrise Rockin the Mojave National Pre

serve.” Ap p. 39. In my view th e law authorizes the Di s trict Cou rt to do so. The legal principles that answer the questionpresente d are found not in the Constitution but in cases that concern the law of injunctions. First, the law of injunctions grant s a districtco urt considerable leeway to interp r e t the mean

ing and application of its own inj unctive order. Members of this Court have writ t e n that the “construc t ion given to” an “injunction by the i s suing judge .

. . i s entit l ed to great weight.” M a dsenv. Wo men’s He alth Center, In c ., 512 U. S. 753, 795 (1 994) (S CALI A , J., concurring in judgment in part and dissenting in part). And the Courts of Appeals have consistently held that dis trictco urts have considerable discretion in interpreti ng and ap p l ying their own injunc

tive decrees. See, e.g., JTH Tax, I n c. v. H & R Block East

ern Tax Se rvs., Inc. , 359 F. 3d 699, 705 (CA4 2004); Ala bama Nursing Home Assn v. Ha rris , 617 F. 2d 385, 388 (CA5 1980). This principle is longs t anding an d well estab

lished, as r e flected in a prominent treatise writer’s sum

mary of the case law: “The court g r anting the injunction is necessarily invested with lar g e discretion in enforcing obedience t o its man d ate, and .

. . courts of appellat e powers are exceedingly averse to interfering with the exercise of such judgm e nt and discretion.” 2 J. High, La w of Injunctions §1458, p p . 1467–1468 (4th ed. 1905). Second, a court should construe the scope of an injunc

tion in light of its purpose and history, in other words, “what the decree was really designed to accomplish.” Mayor of Vicksburg v. Henso n , 23 1 U. S. 259, 273 (1913). Courts hav e long looked to “th e objects for which t h e [injunctive] relief was granted, as well as the circum

stances attending it,” in deciding whether an enjoined party has complied with an injunction. 2 High, supra, §1446, at 1455, and n. 68 (citing cases); see also John B. Stetson Co. v. St ep he n L

. St et s o n C o
. , 128 F. 2d 981, 9834 SALAZAR v. BUONO

B REYER , J., diss enting (CA2 1942). And the y have long refused to “permit defen

dants to evade responsibility for violating an injunction, by doing th rough subterfuge a thin g whichis not in term s a violation, yet produce s the same effect by accomplishing substantially that which they were enjoined f r om doing.” Stodderv. Rosen Ta lki n g Mach. Co
. , 247 Mass. 60, 68, 141 N. E. 569, 571 (1923). These two principles adequately support the Distric t Court’s int e rpretation and application of the injunctiv e language at issue here. As an initial matter, the plain text of the injunction is rea s onably rea dto prohibit the trans

fer. Right now, the cross is covered with a plywood box; after the transfer, the box will be removed and the cross will be displayed. The transfe r thus “permits ” the public “display” of the cross. Inde ed , that is t h e statute’s objective. Consideration of the injunction’s purpose points in the same direct ion. The injunction r e sted upon the Dist rict Court’s det e rmination that the di splay of th e cross “co n veys a mes s age of end o rsement of religion” t o “a reason

able observer” in violation of the Establishment Clause. 212 F. Supp. 2d, a t12 16–1217. (As I have s a id, for pre

sent purposes we must assume that this is so.) The pur

pose of the injunction is to prevent the conveyance of such a message to the reasonable obs e rver. With that p u rpose in mind, consider the following fac t s that confronted the Di strict Court when the plaintiff asked it to enforce the decree:

• The Government had designated the “white cross

. . . as well as a limitedamount of adjoining [land]” as a nation a l memorial. Pub. L. 1 07–117, §81 37(a), 115 Stat. 22 78–2279.

• The new statute direct ed the transfer of the “prop

erty .

. . des i gnated .

. . as a national memorial” to a private entity with an interest in maintaining th e5 Cite as: 55 9 U

. S. ____ (2010)

B REYER , J., diss enting cross in its current location, in ex change for a par

cel of land l o cated else where in the Preserve owned by pri v ate i n dividuals who have taken a similar in

terest in th e cross. Pub. L. 108–87, §§8121(a) and (b), 117 Sta t . 1100.

• The transf e r was ma de “subjectto the co ndition that the recipient maintain the conveyed propert y as a memorial,” and the property reverts t o the United Sta t es if the Secretar ydet e rmines that the recipient has failed to do so. §8121(e), id., at 1100.

• After the tr ansfer, the cross would sit on 1 ac re of privately o w ned land in a 1.6 million acre national preserve, over 90% of whic h is federally owned. 212 F. Supp. 2d, at 1205.

• Congress had previously prevente d the use of fed

eral funds t o remove t h e cross from its present lo

cation. Pub. L. 107–2 48, §8065(b ) , 116 Stat. 1551; Pub. L. 106–554, §133, 114 Stat. 27 63A–230.
The Distric tCourt con s ideredthe facts before it through the lens of the injunction’s original purpose. See 36 4 F. Supp. 2d, at 1180 (explaining that the “[G]overnment’s continuing control over the Latin cross” and the involv e ment of private parties who “desir[e] its continued pres

ence in the Preserve,” “demonstrat[e]” that the transfer would not end “the [G] o vernment’s apparent endorsement of a particular religion”); id., at 1182 (considering the historical context of th e transfer s t atute); see also Buono
v. Kemptho r ne, 527 F. 3d 758, 78 3 (CA9 2008) (“carvin g out a tiny p a rcel of property in the midst of th is vast Pre

serve .
. . will do nothi n g to mini mize the i m permissib l e governmental endorsement” pe rceived by th e reasonable observer). And it concluded that the land transfer would frustrate th at purpose. See 364 F. Supp. 2d, at 1182 (th e transfer would “keep the Latin cross atop S unrise Rock without actually curing the continuing Establishment6 SALAZAR v. BUONO

B REYER , J., diss enting Clause violation”); see also 527 F. 3d, at 783 (finding tha t “[n]othing in the present posture of the case alters .

. . earlier conclusions” regarding wha ta reasonable observer would perceive). Inmy view, this is areasonable conclusion. The injunction forbids the Government to permit the display of the cross on Sunrise Rock , and its basic purpose was to prevent a reasonable obs e rver from believing that the Govern ment had endorsed th e cross. U n der the ci r cumstances presented to the District Court, the transfer would have resulted in such a displ a y and mi ght well have conveyed s u ch a mes s age. Con s equently, the District Court’s deci sion that the land transfer violated the injunc

tion as written and intended was not an abuse of discre

tion. And t hat is what the Ninth Circuit pro p erly held on appeal. What the Es tablishmen t Clause implications of the change dcircums ta nces may b e is a matter not before
us. Cf. Frew v. Ha wki n s , 540 U. S. 431, 442 (2004) (“If the [enjoined defendant] establishes reason to modify th e decree, the court should make the necessary chan ges ; where it ha s not done so, however , the decre e shou ld be enforced according to it s terms”). Because my conclusion rests primarily upon the law of injunctions, because that law is fa irly clear, a n d because we cannot properly re ach beyond that law to consider the underlying Establishment Clause and standing questions, I can find no federal question of general significance in this case. I believe w e should not have gran ted the peti

tion for cer t iorari. Ha ving g r ante dit, the C o urt should now dismis s the writ as improvidently grante d

. Since th e Court has not done so, however, I beli eve that we should simply affirm the Ninth Circuit’s j u dgment. With respect, I dissent.