(Slip Opinion) OCTOBER TERM, 2009 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

SALAZAR, SECRETARY OF THE INTERIOR, ET AL. v. 

BUONO 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT 

No. 08–472. Argued October 7, 2009—Decided April 28, 2010 

In 1934, members of the Veterans of Foreign Wars (VFW) placed a 

Latin cross on federal land in the Mojave National Preserve (Preserve) to honor American soldiers who died in World War I. Claiming

to be offended by a religious symbol’s presence on federal land, respondent Buono, a regular visitor to the Preserve, filed this suit alleging a violation of the First Amendment’s Establishment Clause

and seeking an injunction requiring the Government to remove the 

cross. In the litigation’s first stage (Buono I), the District Court 

found that Buono had standing to sue and, concluding that the presence of the cross on federal land conveyed an impression of governmental endorsement of religion, see Lemon v. Kurtzman, 403 U. S. 

602, 612–613, it granted Buono’s requested injunctive relief (2002 injunction). The District Court did not consider whether the Government’s actions regarding the cross had a secular purpose or caused 

entanglement with religion. While the Government’s appeal was

pending, Congress passed the Department of Defense Appropriations 

Act, 2004, §8121(a) of which directed the Secretary of the Interior to 

transfer the cross and the land on which it stands to the VFW in exchange for privately owned land elsewhere in the Preserve (landtransfer statute). Affirming the District Court’s judgment both as to

standing and on the merits, the Ninth Circuit declined to address the

statute’s effect on Buono’s suit or the statute’s constitutionality 

(Buono II). Because the Government did not seek review by this

Court, the Court of Appeals’ judgment became final. Buono then returned to the District Court seeking injunctive relief against the land

transfer, either through enforcement or modification of the 2002 injunction. In 2005, that court rejected the Government’s claim that 
2 SALAZAR v. BUONO 

Syllabus 

the transfer was a bona fide attempt to comply with the injunction, 

concluding, instead, that it was actually an invalid attempt to keep

the cross on display. 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 implementing the landtransfer statute (Buono III). The Ninth Circuit again affirmed,

largely following the District Court’s reasoning. 

Held: The judgment is reversed, and the case is remanded. 

502 F. 3d 1069 and 527 F. 3d 758, reversed and remanded. 

JUSTICE KENNEDY, joined in full by THE CHIEF JUSTICE and in part 

by JUSTICE ALITO, concluded: 

1. Buono has standing to maintain this action. Whatever the validity of the Government’s argument that Buono’s asserted injury—

offense at a religious symbol’s presence on federal land—is not personal to him and so does not confer Article III standing, that argument is not available at this stage of the litigation. The District 

Court rejected the argument in Buono I, the Ninth Circuit affirmed 

in Buono II, and the Court of Appeals’ judgment became final and

unreviewable upon the expiration of the 90-day deadline for filing a

certiorari petition, 28 U. S. C. §2101(c). Moreover, Buono had standing in Buono III to seek application of the injunction against the

land-transfer statute. A party that obtains a judgment in its favor 

acquires a “judicially cognizable” interest in ensuring compliance

with that judgment. See Allen v. Wright, 468 U. S. 737. Buono’s entitlement to an injunction having been established in Buono I and II, 

he sought in Buono III to prevent the Government from frustrating or 

evading that injunction. His interests in doing so were sufficiently

personal and concrete to support his standing, given the rights he obtained under the earlier decree against the same party as to the same

cross and the same land. The Government’s contention that Buono 

sought to extend, rather than to enforce, the 2002 injunction is not an 

argument about standing, but about the merits of the District Court’s

order. Pp. 7–9.

2. The District Court erred in enjoining the Government from implementing the land-transfer statute on the premise that the relief

was necessary to protect Buono’s rights under the 2002 injunction. 

Pp. 9–18.

(a) A court may order an injunction only after taking into account 

all the circumstances bearing on the need for prospective relief. See, 

e.g., United States v. Swift & Co., 286 U. S. 106, 114. Here, the District Court did not engage in the appropriate inquiry. The landtransfer statute was a substantial change in circumstances bearing 

on the propriety of the requested relief. By dismissing as illicit the

motives of Congress in passing it, the District Court took insufficient 
Cite as: 559 U. S. ____ (2010) 3 

Syllabus 

account of the context in which the statute was enacted and the reasons for its passage. Placement of the cross on federal land by private persons was not an attempt to set the state’s imprimatur on a 

particular creed. Rather, the intent was simply to honor fallen soldiers. Moreover, the cross stood for nearly seven decades before the

statute was enacted, by which time the cross and the cause it commemorated had become entwined in the public consciousness. The 

2002 injunction thus presented the Government with a dilemma. It 

could not maintain the cross without violating the injunction, but it 

could not remove the cross without conveying disrespect for those the

cross was seen as honoring. Deeming neither alternative satisfactory, Congress enacted the land-transfer statute. The statute embodied a legislative judgment that this dispute is best resolved through a

framework and policy of accommodation. The statute should not 

have been dismissed as an evasion, for it brought about a change of 

law and a congressional statement of policy applicable to the case.

Pp. 9–13.

(b) Where legislative action undermines the basis for previous relief, the relevant question is whether an ongoing exercise of the

court’s equitable authority is supported by the prior showing of illegality, judged against the claim that changed circumstances render

prospective relief inappropriate. The District Court granted the 2002 

injunction based solely on its conclusion that the presence of the cross 

on federal land conveyed an impression of governmental endorsement 

of religion, and the Ninth Circuit affirmed on the same grounds. Neither court considered whether the Government had acted based on an 

improper purpose. Given this sole reliance on perception, any further 

relief grounded on the injunction should have rested on the same basis. But the District Court used an injunction granted for one reason 

(perceived governmental endorsement) as the basis for enjoining conduct that was alleged to be objectionable for a different reason (an illicit governmental purpose). Ordering relief under such circumstances was improper. The court failed to consider whether the 

change in law and circumstances effected by the land-transfer statute 

had rendered the “reasonable observer” standard inappropriate to resolve the dispute. Nor did the court attempt to reassess Buono I’s 

findings in light of the accommodation policy embraced by Congress. 

Rather, it concentrated solely on the religious aspects of the cross, divorced from its background and context. Pp. 13–17. 

(c) The same respect for a coordinate branch of Government that

forbids striking down an Act of Congress except upon a clear showing 

of unconstitutionality, see, e.g., United States v. Morrison, 529 U. S. 

598, 607, requires that a congressional command be given effect 

unless no legal alternative exists. Even if, contrary to the congres-
4 SALAZAR v. BUONO 

Syllabus 

sional judgment, the land transfer were thought an insufficient accommodation in light of the earlier endorsement finding, it was incumbent upon the District Court to consider less drastic relief than 

complete invalidation of the statute. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329. On remand, that 

court should conduct a proper inquiry into the continued necessity for

injunctive relief in light of the statute. Pp. 17–18.

JUSTICE ALITO concluded that this case should not be remanded for 

the lower courts to decide whether implementation of the landtransfer statute would violate the District Court’s injunction or the 

Establishment Clause. Rather, because the factual record has been 

sufficiently developed to permit resolution of these questions, he

would decide them and hold that the statute may be implemented.

The case’s singular circumstances presented Congress with a delicate 

problem. Its solution was an approach designed to eliminate any

perception of religious sponsorship stemming from the location of the 

cross on federally owned land, while avoiding the disturbing symbolism that some would associate with the destruction of this historic 

monument. The mechanism Congress selected is quite common in 

the West, a “land exchange,” whereby ownership of the land on which 

the cross is located would be transferred to the VFW in exchange for 

another nearby parcel of equal value. The land transfer would not 

violate the District Court injunction, the obvious meaning of which 

was simply that the Government could not allow the cross to remain 

on federal land. Nor would the statute’s implementation constitute

an endorsement of religion in violation of the Establishment Clause.

The so-called “endorsement test” views a challenged religious display

through the eyes of a hypothetical reasonable observer aware of the

history and all other pertinent facts relating to the display. Here, 

therefore, this observer would be familiar with the monument’s origin

and history and thereby appreciate that the transfer represents an

effort by Congress to address a unique situation and to find a solution

that best accommodates conflicting concerns. Finally, the statute

was not enacted for the illicit purpose of embracing the monument’s 

religious message but to commemorate the Nation’s war dead and to

avoid the disturbing symbolism that would have been created by the

monument’s destruction. Pp. 1–7.

JUSTICE SCALIA, joined by JUSTICE THOMAS, concluded that this 

Court need not—indeed, cannot—decide this case’s merits because 

Buono lacks Article III standing to pursue the relief he seeks, which 

is not enforcement of the original injunction but expansion of it. By

enjoining the Government from implementing the statute at issue,

the District Court’s 2005 order went well beyond the original injunction’s proscription of the cross’s display on public property. Because 
Cite as: 559 U. S. ____ (2010) 5 

Syllabus 

Buono seeks new relief, he must show that he has standing to pursue 

that relief by demonstrating that blocking the land transfer will “redress or prevent an actual or imminently threatened injury to [him]

caused by private or official violation of law.” Summers v. Earth Island Institute, 555 U. S. ___, ___. He has failed, however, to allege 

any such injury. Even assuming that being offended by a religious 

display constitutes a cognizable injury, it is merely speculative

whether the cross will remain in place, and in any event Buono has 

made clear, by admitting he has no objection to Christian symbols on

private property, that he will not be offended. Neither district courts’ 

discretion to expand injunctions they have issued nor this District

Court’s characterization of its 2005 order as merely enforcing the existing injunction makes any difference. If in fact a court awards new 

relief, it must have Article III jurisdiction to do so. Pp. 1–7. 

KENNEDY, J., announced the judgment of the Court and delivered an

opinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined 

in part. ROBERTS, C. J., filed a concurring opinion. ALITO, J., filed an 

opinion concurring in part and concurring in the judgment. SCALIA, J., 

filed an opinion concurring in the judgment, in which THOMAS, 

J., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG 

and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion. 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

Opinion of KENNEDY, J. 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 08–472 

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS v. FRANK BUONO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 28, 2010] 

JUSTICE KENNEDY announced the judgment of the Court 

and delivered an opinion, in which THE CHIEF JUSTICE 

joins and JUSTICE ALITO joins in part. 

In 1934, private citizens placed a Latin cross on a rock 

outcropping in a remote section of 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 placement of the cross or its continued presence on 

federal land, but to a statute that would transfer the cross 

and the land on which it stands to a private party. Department of Defense Appropriations Act, 2004, Pub. L.

108–87, §8121(a), 117 Stat. 1100. The District Court 

permanently enjoined the Government from implementing 

the statute. The Court of Appeals affirmed. We conclude 

that its judgment was in error. 

I 

A 

The Mojave National Preserve (Preserve) spans ap-
2 SALAZAR v. BUONO 

Opinion of KENNEDY, J. 

proximately 1.6 million acres in southeastern California.

The Preserve is nestled within the Mojave Desert, whose

picturesque but rugged territory comprises 25,000 square

miles, exceeding in size the combined area of the Nation’s 

five smallest States. See Merriam-Webster’s Geographical 

Dictionary 755, 1228–1230 (3d ed. 1997). Just over 90 

percent of the land in the Preserve is federally owned, 

with the rest owned either by the State of California or by

private parties. The National Park Service, a division of 

the Department of the Interior, administers the Preserve 

as part of the National Park System. 16 U. S. C. 

§§410aaa–41 and 410aaa–46. 

Sunrise Rock is a granite outcropping located within the

Preserve. Sunrise Rock and the area in its immediate 

vicinity are federal land, but two private ranches are 

located less than two miles away. The record does not 

indicate whether fencing is used to mark the boundary of 

these ranches. In 1934, members of the Veterans of Foreign Wars (VFW) mounted a Latin cross on the rock as a

memorial to soldiers who died in World War I. A Latin 

cross consists of two bars—a vertical one and a shorter, 

horizontal one. The cross has been replaced or repaired at

various times over the years, most recently in 1998 by

Henry Sandoz. Sandoz is a private citizen who owns land

elsewhere in the Preserve, a portion of which he is prepared to transfer to the Government in return for its 

conveyance to the VFW of the land on which the cross 

stands, all pursuant to the statute now under review. 

The cross, as built by Sandoz, consists of 4-inch diameter metal pipes painted white. The vertical bar is less 

than eight feet tall. It cannot be seen from the nearest 

highway, which lies more than 10 miles away. It is visible, however, from Cima Road, a narrow stretch of blacktop that comes within 100 feet of Sunrise Rock. 

The cross has been a gathering place for Easter services 

since it was first put in place; and Sunrise Rock and its 
Cite as: 559 U. S. ____ (2010) 3 

Opinion of KENNEDY, J. 

immediate area continue to be used as a campsite. At one 

time the cross was accompanied by wooden signs stating 

“‘The Cross, Erected in Memory of the Dead of All Wars,’ 

and ‘Erected 1934 by Members of Veterans of Foregin [sic] 

Wars, Death Valley post 2884.’” Buono v. Kempthorne, 

527 F. 3d 758, 769 (CA9 2008). The signs have since

disappeared, and the cross now stands unmarked. 

B 

Frank Buono, respondent here, is a retired Park Service 

employee who makes regular visits to the Preserve. 

Buono claims to be offended by the presence of a religious 

symbol on federal land. He filed suit in the United States 

District Court for the Central District of California. He 

alleged a violation of the Establishment Clause of the

First Amendment 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 District Court ruled in 

Buono’s favor on opposing motions for summary judgment. 

Buono v. Norton, 212 F. Supp. 2d 1202 (CD Cal. 2002) 

(Buono I). As an initial matter, the court found that 

Buono had standing to maintain his Establishment Clause

challenge. Id., at 1210–1214. On the merits, the parties 

agreed that the dispute should be governed by the socalled Lemon test, which the District Court formulated as 

follows: 

“A government religious practice or symbol will survive an Establishment Clause challenge when it

(1) has a secular purpose, (2) has a primary effect that

neither advances nor inhibits religion, and (3) does

not foster excessive state entanglement with religion.” 

Buono I, supra, at 1214–1215 (citing Lemon v. Kurtzman, 403 U. S. 602, 612–613 (1971)). 

The court expressly declined to consider whether the 
4 SALAZAR v. BUONO 

Opinion of KENNEDY, J. 

Government’s actions regarding the cross had a secular

purpose, 212 F. Supp. 2d, at 1214–1215, or whether they 

caused excessive entanglement with religion, id., at 1217, 

n. 9. Instead, the court evaluated the primary effect of the 

cross by asking how it would be viewed by a “reasonable 

observer.” Id., at 1216. Concluding that presence of the 

cross on federal land conveyed an impression of governmental endorsement of religion, the court granted Buono’s 

request for injunctive relief. The court’s order in Buono I 

(2002 injunction) permanently forbade the Government 

“from permitting the display of the Latin cross in the area 

of Sunrise Rock in the Mojave National Preserve.” App. to

Pet. for Cert. 146a. 

The United States Court of Appeals for the Ninth Circuit stayed the 2002 injunction to the extent that it required the cross to be removed or dismantled but did not

forbid alternative methods of complying with the order. 

The Government covered the cross, first with a tarpaulin 

and later with a plywood box. 

On appeal, the judgment of the District Court was affirmed, both as to standing and on the merits of Buono’s

Establishment Clause challenge. Buono v. Norton, 371 

F. 3d 543 (CA9 2004) (Buono II). Like the District Court, 

the Court of Appeals did not decide whether the Government’s action, or nonaction, with respect to the cross had

been motivated by a secular purpose. Id., at 550. Its 

ruling was based instead on the conclusion that a reasonable observer would perceive a cross on federal land as

governmental endorsement of religion. Id., at 549–550. 

The Government did not seek review by this Court, so that

the judgment of the Court of Appeals in Buono II became 

final. 

C 

During the relevant proceedings, Congress enacted

certain statutes related to the cross: 
Cite as: 559 U. S. ____ (2010) 5 

Opinion of KENNEDY, J. 

(1) Before Buono I was filed, Congress passed an appropriations bill that included a provision forbidding the use

of governmental funds to remove the cross. Consolidated 

Appropriations Act, 2001, Pub. L. 106–554, §133, 114 Stat.

2763A–230. 

(2) While Buono I was pending before the District Court,

Congress designated the cross and its adjoining land “as a

national memorial commemorating United States participation in World War I and honoring the American veterans of that war.” Department of Defense Appropriations

Act, 2002, Pub. L. 107–117, §8137(a), 115 Stat. 2278. The 

Secretary of the Interior was directed to expend up to 

$10,000 to acquire a replica of the original cross and its 

memorial plaque and to install the plaque at a suitable 

nearby location. §8137(c). 

(3) Three months after Buono I was decided, Congress

again prohibited the spending of governmental funds to

remove the cross. Department of Defense Appropriations

Act, 2003, Pub. L. 107–248, §8065(b), 116 Stat. 1551. 

(4) While the Government’s appeal in Buono II was 

pending, Congress passed a statute (land-transfer statute) 

directing the Secretary of the Interior to transfer to the 

VFW the Government’s interest in the land that had been 

designated a national memorial. Department of Defense 

Appropriations Act, 2004, Pub. L. 108–87, §8121(a), 117

Stat. 1100. In exchange, the Government was to receive 

land elsewhere in the preserve from Henry Sandoz and his 

wife. Ibid. Any difference in value between the two parcels would be equalized through a cash payment.

§§8121(c), (d). The land-transfer statute provided that the

property would revert to the Government if not maintained “as a memorial commemorating United States

participation in World War I and honoring the American 

veterans of that war.” §8121(e), 117 Stat. 1100. The 

statute presents a central issue in this case. 

The Court of Appeals in Buono II did not address the 
6 SALAZAR v. BUONO 

Opinion of KENNEDY, J. 

effect on the suit of a potential land transfer under the 

statute. The court noted that the transfer might “take as

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 whether a transfer completed under [the statute] would pass constitutional muster.” Id., at 546. 

D 

After the Court of Appeals affirmed in Buono II, Buono 

returned to the District Court seeking to prevent the land

transfer. He sought injunctive relief against the transfer, 

either through enforcement or modification of the 2002 

injunction. In evaluating his request the trial court described the relevant question as whether the land transfer

was a bona fide attempt to comply with the injunction (as

the Government claimed), or a sham aimed at keeping the 

cross in place (as Buono claimed). Buono v. Norton, 364 

F. Supp. 2d 1175, 1178 (CD Cal. 2005) (Buono III). In 

Buono III, the court did not consider whether the transfer 

itself was an “independent violation of the Establishment 

Clause.” Id., at 1182, n. 8. The court nevertheless concluded that the transfer was an attempt by the Government 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 implementing the land-transfer statute. Id., at 1182. 

The Court of Appeals again affirmed, largely following 

the reasoning of the District Court. Buono v. Kempthorne, 

502 F. 3d 1069 (CA9 2007). The Government’s motion for 

rehearing en banc was denied over a dissent by Judge

O’Scannlain, 527 F. 3d 758, and this Court granted certiorari, 555 U. S. ___ (2009). 
Cite as: 559 U. S. ____ (2010) 7 

Opinion of KENNEDY, J. 

II 

Before considering the District Court’s order on the

merits, the first inquiry must be with respect to Buono’s

standing to maintain this action. To demonstrate standing, a plaintiff must have “alleged such a personal stake in 

the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Horne v. Flores, 557 

U. S. ___, ___ (2009) (slip op., at 8) (internal quotation 

marks omitted). The Government argues that Buono’s 

asserted injury is not personal to him and so does not 

confer Article III standing. As noted above, Buono does 

not find the cross itself objectionable but instead takes 

offense at the presence of a religious symbol on federal 

land. Buono does not claim that, as a personal matter, he 

has been made to feel excluded or coerced, and so, the 

Government contends, he cannot object to the presence of 

the cross. Brief for Petitioners 12–17. 

Whatever the validity of the objection to Buono’s standing, that argument is not available to the Government at 

this stage of the litigation. When Buono moved the District Court in Buono I for an injunction requiring the

removal of the cross, the Government raised the same 

standing objections it proffers now. Rejecting the Government’s position, the District Court entered a judgment

in Buono’s favor, which the Court of Appeals affirmed in 

Buono II. The Government did not seek review in this 

Court. The judgment became final and unreviewable upon

the expiration of the 90-day deadline under 28 U. S. C. 

§2101(c) for filing a petition for certiorari. Toledo Scale 

Co. v. Computing Scale Co., 261 U. S. 399, 418 (1923); see 

Missouri v. Jenkins, 495 U. S. 33, 45 (1990) (90-day deadline is “mandatory and jurisdictional”). The Government 

cannot now contest Buono’s standing to obtain the final

judgment in Buono I. 

Of course, even though the Court may not reconsider 

whether Buono had standing to seek the 2002 injunction, 
8 SALAZAR v. BUONO 

Opinion of KENNEDY, J. 

it is still necessary to evaluate his standing in Buono III to 

seek application of the injunction against the landtransfer statute. That measure of relief is embodied in the 

judgment upon which we granted review. 

This was a measure of relief that Buono had standing to

seek. A party that obtains a judgment in its favor acquires a “judicially cognizable” interest in ensuring compliance with that judgment. See Allen v. Wright, 468 U. S. 

737, 763 (1984) (plaintiffs’ right to enforce a desegregation 

decree to which they were parties is “a personal interest,

created by law, in having the State refrain from taking

specific actions”). Having obtained a final judgment 

granting relief on his claims, Buono had standing to seek 

its vindication. 

The Government does not deny this proposition as a 

general matter. Instead, it argues that Buono was not

seeking to vindicate—but rather to extend—the 2002

injunction. The first injunction forbade the Government

from maintaining the cross on Sunrise Rock; yet in Buono 

III he sought to preclude the land transfer, a different 

governmental action. The Government contends that 

Buono lacked standing to seek this additional relief. 

Reply Brief for Petitioners 5. 

The Government’s argument, however, is properly addressed to the relief granted by the judgment below, not to

Buono’s standing to seek that relief. The Government has 

challenged whether appropriate relief was granted in 

Buono III in light of the relevant considerations and legal 

principles, and we shall consider these questions. The 

standing inquiry, by contrast, turns on the alleged injury

that prompted the plaintiff to invoke the court’s jurisdiction in the first place. Buono’s entitlement to an injunction having been established in Buono I and II, he sought 

in Buono III to prevent the Government from frustrating

or evading that injunction. Based on the rights he obtained under the earlier decree—against the same party, 
Cite as: 559 U. S. ____ (2010) 9 

Opinion of KENNEDY, J. 

regarding the same cross and the same land—his interests 

in doing so were sufficiently personal and concrete to

support his standing. Although Buono also argued that 

the land transfer should be prohibited as an “independent”

Establishment Clause violation, the District Court did not 

address or order relief on that claim, which is not before 

us. Buono III, 364 F. Supp. 2d, at 1182, n. 8. This is not a 

case in which a party seeks to import a previous 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 injunction did not provide a basis for 

the District Court to invalidate the land transfer. This is 

not an argument about standing but about the merits of 

the District Court’s order. Those points now must be 

addressed. 

III 

The procedural history of this litigation must be considered to identify the issues now subject to review. The 

District Court granted the 2002 injunction after concluding that a cross on federal land violated the Establishment

Clause. The Government unsuccessfully challenged that

conclusion on appeal, and the judgment became final upon 

completion of direct review. At that point, the judgment

“became res judicata to the parties and those in privity

with them, not only as to every matter which was offered

and received to sustain or defeat the claim or demand, but 

as to any other admissible matter which might have been 

offered for that purpose.” Travelers Indemnity Co. v. 

Bailey, 557 U. S. ___, ___ (2009) (slip op., at 14) (internal 

quotation marks omitted). The Government therefore 

does not—and could not—ask this Court to reconsider the 

propriety of the 2002 injunction or the District Court’s

reasons for granting it.

The question now before the Court is whether the Dis-
10 SALAZAR v. BUONO 

Opinion of KENNEDY, J. 

trict Court properly enjoined the Government from implementing the land-transfer statute. The District Court 

did not consider whether the statute, in isolation, would 

have violated the Establishment Clause, and it did not 

forbid the land transfer as an independent constitutional 

violation. Buono III, supra, at 1182, n. 8. Rather, the 

court enjoined compliance with the statute on the premise 

that the relief was necessary to protect the rights Buono

had secured through the 2002 injunction. 

An injunction is an exercise of a court’s equitable authority, to be ordered only after taking into account all of 

the circumstances that bear on the need for prospective

relief. See United States v. Swift & Co., 286 U. S. 106, 114 

(1932). See also Weinberger v. Romero-Barcelo, 456 U. S. 

305, 312 (1982); Hecht Co. v. Bowles, 321 U. S. 321, 329 

(1944); 11A C. Wright, A. Miller, & M. Kane, Federal

Practice and Procedure §2942, pp. 39–42 (2d ed. 1995) 

(hereinafter Wright & Miller). Equitable relief is not

granted as a matter of course, see Weinberger, 456 U. S., 

at 311–312, and a court should be particularly cautious 

when contemplating relief that implicates public interests, 

see id., at 312 (“In exercising their sound discretion, courts

of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction”); Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 

U. S. 334, 338 (1933) (“Where an important public interest 

would be prejudiced, the reasons for denying the injunction may be compelling”). Because injunctive relief “is

drafted in light of what the court believes will be the 

future course of events, . . . a court must never ignore

significant changes in the law or circumstances underlying 

an injunction lest the decree be turned into an ‘instrument

of wrong.’” Wright & Miller §2961, at 393–394 (quoting 

Swift & Co., supra, at 115). 

Here, the District Court did not engage in the appropriate inquiry. The land-transfer statute was a substantial 
Cite as: 559 U. S. ____ (2010) 11 

Opinion of KENNEDY, J. 

change in circumstances bearing on the propriety of the 

requested relief. The court, however, did not acknowledge

the statute’s significance. It examined the events that led 

to the statute’s enactment and found an intent to prevent 

removal of the cross. Deeming this intent illegitimate, the 

court concluded that nothing of moment had changed.

This was error. Even assuming that the land-transfer 

statute was an attempt to prevent removal of the cross, it 

does not follow that an injunction against its implementation was appropriate.

By dismissing Congress’s motives as illicit, the District 

Court took insufficient account of the context in which the 

statute was enacted and the reasons for its passage.

Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World 

War I. Although certainly a Christian symbol, the cross 

was not emplaced on Sunrise Rock to promote a Christian 

message. Cf. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 661 

(1989) (KENNEDY, J., concurring in judgment in part and 

dissenting in part) (“[T]he [Establishment] Clause forbids

a city to permit the permanent erection of a large Latin

cross on the roof of city hall . . . because such an obtrusive

year-round religious display would place the government’s 

weight behind an obvious effort to proselytize on behalf of

a particular religion”). Placement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, 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 that 

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 seven decades before the statute 

was enacted. By then, the cross and the cause it com-
12 SALAZAR v. BUONO 

Opinion of KENNEDY, J. 

memorated had become entwined in the public consciousness. See ibid. Members of the public gathered regularly 

at Sunrise Rock to pay their respects. Rather than let the 

cross deteriorate, community members repeatedly took it

upon themselves to replace it. Congress ultimately designated the cross as a national memorial, ranking it among 

those monuments honoring the noble sacrifices that constitute our national heritage. See note following 16

U. S. C. §431 (listing officially designated national memorials, including the National D-Day Memorial and the 

Vietnam Veterans Memorial). Research discloses no other 

national memorial honoring American soldiers—more 

than 300,000 of them—who were killed or wounded in 

World War I. See generally A. Leland & M. Oboroceanu,

Congressional Research Service Report for Congress, 

American War and Military Operations Casualties: Lists

and Statistics 2 (2009). It is reasonable to interpret the 

congressional designation as giving recognition to the 

historical meaning that the cross had attained. Cf. Van 

Orden v. Perry, 545 U. S. 677, 702–703 (2005) (BREYER, J., 

concurring in judgment) (“40 years” without legal challenge to a Ten Commandments display “suggest that the 

public visiting the [surrounding] grounds has considered 

the religious aspect of the tablets’ message as part of what

is a broader moral and historical message reflective of a

cultural heritage”).

The 2002 injunction thus presented the Government 

with a dilemma. It could not maintain the cross without 

violating the injunction, but it could not remove the cross

without conveying disrespect for those the cross was seen

as honoring. Cf. id., at 704 (to invalidate a longstanding 

Ten Commandments display might “create the very kind 

of religiously based divisiveness that the Establishment 

Clause seeks to avoid”). Deeming neither alternative to be

satisfactory, Congress enacted the statute here at issue. 

Congress, of course, may not use its legislative powers to 
Cite as: 559 U. S. ____ (2010) 13 

Opinion of KENNEDY, J. 

reopen final judgments. See Plaut v. Spendthrift Farm, 

Inc., 514 U. S. 211, 225–226 (1995). That principle, however, was not a bar to this statute. The Government’s 

right to transfer the land was not adjudicated in Buono I 

or compromised by the 2002 injunction.

In belittling the Government’s efforts as an attempt to

“evade” the injunction, Buono III, 364 F. Supp. 2d, at

1182, the District Court had things backwards. Congress’s prerogative to balance opposing interests and its 

institutional competence to do so provide one of the principal reasons for deference to its policy determinations. See 

Patsy v. Board of Regents of Fla., 457 U. S. 496, 513 

(1982). Here, Congress adopted a policy with respect to 

land it now owns in order to resolve a specific controversy.

Congress, the Executive, and the Judiciary all have a duty

to support and defend the Constitution. See United States 

v. Nixon, 418 U. S. 683, 703 (1974) (“In the performance of 

assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the

interpretation of its powers by any branch is due great

respect from the others”). The land-transfer statute embodies Congress’s legislative judgment that this dispute is

best resolved through a framework and policy of accommodation for a symbol that, while challenged under the 

Establishment Clause, has complex meaning beyond the

expression of religious views. That judgment should not

have been dismissed as an evasion, for the statute brought 

about a change of law and a congressional statement of 

policy applicable to the case.

Buono maintains that any governmental interest in 

keeping the cross up must cede to the constitutional concerns on which the 2002 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. 
14 SALAZAR v. BUONO 

Opinion of KENNEDY, J. 

A court must find prospective relief that fits the remedy

to the wrong or injury that has been established. See 

Swift & Co., 286 U. S., at 114 (“A continuing decree of 

injunction directed to events to come is subject always to

adaptation as events may shape the need”). See also 

United States v. United Shoe Machinery Corp., 391 U. S. 

244, 249 (1968). Where legislative action has undermined 

the basis upon which relief has previously been granted, a

court must consider whether the original finding of

wrongdoing continues to justify the court’s intervention.

See Railway Employees v. Wright, 364 U. S. 642, 648–649 

(1961); Pennsylvania v. Wheeling & Belmont Bridge Co., 

18 How. 421, 430–432 (1856). The relevant question is

whether an ongoing exercise of the court’s equitable authority is supported by the prior showing of illegality, 

judged against the claim that changed circumstances have 

rendered prospective relief inappropriate. 

The District Court granted the 2002 injunction based 

solely on its conclusion that presence of the cross on federal land conveyed an impression of governmental endorsement of religion. The court expressly disavowed any

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 Appeals affirmed the injunction on the same grounds, similarly eschewing any scrutiny of governmental purpose. 

Buono II, 371 F. 3d, at 550. 

Although, for purposes of the opinion, the propriety of 

the 2002 injunction may be assumed, the following discussion should not be read to suggest this Court’s agreement

with that judgment, some aspects of which may be questionable. The goal of avoiding governmental endorsement

does not require eradication of all religious symbols in the 

public realm. A cross by the side of a public highway 

marking, for instance, the place where a state trooper 

perished need not be taken as a statement of governmen-
Cite as: 559 U. S. ____ (2010) 15 

Opinion of KENNEDY, J. 

tal support for sectarian beliefs. The Constitution does 

not oblige government to avoid any public acknowledgment of religion’s role in society. See Lee v. Weisman, 505 

U. S. 577, 598 (1992) (“A relentless and all-pervasive 

attempt to exclude religion from every aspect of public life 

could itself become inconsistent with the Constitution”).

See also Corporation of Presiding Bishop of Church of 

Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 

334 (1987) (“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the

Establishment Clause” (internal quotation marks omitted)). Rather, it leaves room to accommodate divergent 

values within a constitutionally permissible framework. 

Even assuming the propriety of the original relief, 

however, the question before the District Court in Buono 

III was whether to invalidate the land transfer. Given the 

sole reliance on perception as a basis for the 2002 injunction, one would expect that any relief grounded on that

decree would have rested on the same basis. But the 

District Court enjoined the land transfer on an entirely 

different basis: its suspicion of an illicit governmental 

purpose. See Buono III, 364 F. Supp. 2d, at 1182. The 

court made no inquiry into the effect that knowledge of the 

transfer of the land to private ownership would have had 

on any perceived governmental endorsement of religion,

the harm to which the 2002 injunction was addressed.

The District Court thus used an injunction granted for one 

reason as the basis for enjoining conduct that was alleged 

to be objectionable for a different reason. Ordering relief

under such circumstances was improper—absent a finding

that the relief was necessary to address an independent 

wrong. See ibid., n. 8 (noting that the court “need not 

consider [Buono’s] other contention that the land transfer 

itself is an independent violation of the Establishment 

Clause”). 
16 SALAZAR v. BUONO 

Opinion of KENNEDY, J. 

The District Court should have evaluated Buono’s modification request in light of the objectives of the 2002 injunction. The injunction was issued to address the impression conveyed by the cross on federal, not private,

land. Even if its purpose were characterized more generally as avoiding the perception of governmental endorsement, that purpose would favor—or at least not oppose—

ownership of the cross by a private party rather than by 

the Government. Cf. Pleasant Grove City v. Summum, 

555 U. S. ___, ___ (2009) (slip op., at 8) (“[P]ersons who 

observe donated monuments routinely—and reasonably—

interpret them as conveying some message on the property

owner’s behalf”).

Buono argues that the cross would continue to stand on

Sunrise Rock, which has no visual differentiation from the 

rest of the primarily federally owned Preserve. He also 

points to the reversionary clause in the land-transfer

statute requiring that the land be returned to the Government if not maintained as a World War I memorial. 

Finally, he notes that the cross remains designated a

national memorial by an Act of Congress, which arguably 

would prevent the VFW from dismantling the cross even if

it wanted to do so. Brief for Respondent 37–48.

The District Court failed to consider whether, in light of 

the change in law and circumstances effected by the landtransfer statute, the “reasonable observer” standard continued to be the appropriate framework through which to

consider the Establishment Clause concerns invoked to 

justify the requested relief. As a general matter, courts

considering Establishment Clause challenges do not inquire into “reasonable observer” perceptions with respect 

to objects on private land. Even if, however, this standard 

were the appropriate one, but see County of Allegheny, 492 

U. S., at 668 (KENNEDY, J., concurring in judgment in part

and dissenting in part) (criticizing the “reasonable observer” test); Capitol Square Review and Advisory Bd. v. 
Cite as: 559 U. S. ____ (2010) 17 

Opinion of KENNEDY, J. 

Pinette, 515 U. S. 753 763–768 (1995) (plurality opinion) 

(criticizing reliance on “perceived endorsement”), it is not 

clear that Buono’s claim is meritorious. That test requires 

the hypothetical construct of an objective observer who 

knows all of the pertinent facts and circumstances surrounding the symbol and its placement. See id., at 780 

(O’Connor, J., concurring in part and concurring in judgment). But see id., at 767–768 (plurality opinion) (doubting the workability of the reasonable observer test). Applying this test here, the message conveyed by the cross

would be assessed in the context of all relevant factors. 

See Van Orden, 545 U. S., at 700 (BREYER, J., concurring

in judgment) (the Establishment Clause inquiry “must 

take account of context and consequences”); Lee, supra, at 

597 (“Our Establishment Clause jurisprudence remains a

delicate and fact-sensitive one”).

The District Court did not attempt to reassess the findings in Buono I in light of the policy of accommodation 

that Congress had embraced. Rather, the District Court 

concentrated solely on the religious aspects of the cross,

divorced from its background and context. But a Latin 

cross is not merely a reaffirmation of Christian beliefs. It 

is a symbol often used to honor and respect those whose

heroic acts, noble contributions, and patient striving help

secure an honored place in history for this Nation and its 

people. Here, one Latin cross in the desert evokes far 

more than religion. It evokes thousands of small crosses 

in foreign fields marking the graves of Americans who fell 

in battles, battles whose tragedies are compounded if the 

fallen are forgotten.

Respect for a coordinate branch of Government forbids

striking down an Act of Congress except upon a clear 

showing of unconstitutionality. See United States v. Morrison, 529 U. S. 598, 607 (2000); El Paso & Northeastern 

R. Co. v. Gutierrez, 215 U. S. 87, 96 (1909). The same 

respect requires that a congressional command be given 
18 SALAZAR v. BUONO 

Opinion of KENNEDY, J. 

effect unless no legal alternative exists. Even if, contrary

to the congressional judgment, the land transfer were 

thought an insufficient accommodation in light of the

earlier finding of religious endorsement, it was incumbent

upon the District Court to consider less drastic relief than 

complete invalidation of the land-transfer statute. See 

Ayotte v. Planned Parenthood of Northern New Eng., 546 

U. S. 320, 329 (2006) (in granting relief, “we try not to 

nullify more of a legislature’s work than is necessary, for 

we know that [a] ruling of unconstitutionality frustrates 

the intent of the elected representatives of the people” 

(internal quotation marks omitted; alteration in original)); 

Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987). 

For instance, if there is to be a conveyance, the question 

might arise regarding the necessity of further action, such

as signs to indicate the VFW’s ownership of the land. As 

we have noted, Congress directed the Secretary of the 

Interior to install near the cross a replica of its original

memorial plaque. One of the signs that appears in early 

photographs of the cross specifically identifies the VFW as 

the group that erected it.

Noting the possibility of specific remedies, however, is

not an indication of agreement about the continued necessity for injunctive relief. The land-transfer statute’s bearing on this dispute must first be determined. To date, this 

Court’s jurisprudence in this area has refrained from

making sweeping pronouncements, and this case is ill 

suited for announcing categorical rules. In light 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 undertake the analysis in the first instance. On remand, if Buono continues to challenge implementation of the statute, the District Court should 

conduct a proper inquiry as described above. 
Cite as: 559 U. S. ____ (2010) 19 

Opinion of KENNEDY, J. 

* * * 

The judgment of the Court of Appeals is reversed, and

the case is remanded for further proceedings. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

ROBERTS, C. J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 08–472 

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS v. FRANK BUONO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 28, 2010] 

CHIEF JUSTICE ROBERTS, concurring. 

At oral argument, respondent’s counsel stated that it

“likely would be consistent with the injunction” for the 

Government to tear down the cross, sell the land to the 

Veterans of Foreign Wars, and return the cross to them,

with the VFW immediately raising the cross again. Tr. of 

Oral Arg. 44. I do not see how it can make a difference for 

the Government to skip that empty ritual and do what 

Congress told it to do—sell the land with the cross on it. 

“The Constitution deals with substance, not shadows.” 

Cummings v. Missouri, 4 Wall. 277, 325 (1867). 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

Opinion of ALITO, J. 

SUPREME COURT OF THE UNITED STATES 

No. 08–472 

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS v. FRANK BUONO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 28, 2010] 

JUSTICE ALITO, concurring in part and concurring in the

judgment. 

I join JUSTICE KENNEDY’s opinion in all respects but 

one: I would not remand this case for the lower courts to 

decide whether implementation of the land-transfer statute enacted by Congress in 2003, Department of Defense 

Appropriations Act, 2004, §8121, would violate the District 

Court’s injunction or the Establishment Clause. The 

factual record has been sufficiently developed to permit 

resolution of these questions, and I would therefore decide 

them and hold that the statute may be implemented.

The singular circumstances surrounding the monument 

on Sunrise Rock presented Congress with a delicate problem, and the solution that Congress devised is true to the 

spirit of practical accommodation that has made the 

United States a Nation of unparalleled pluralism and 

religious tolerance. In brief, the situation that Congress 

faced was as follows. 

After service in the First World War, a group of veterans

moved to the Mojave Desert, in some cases for health 

reasons.1 They joined the Veterans of Foreign Wars 

—————— 

1See Memorandum from Mark Luellen, Historian, Dept. of Interior, 

to Superintendent, Mojave National Preserve (Jan. 31, 2000) (Luellen

Memo), Decl. of Charles R. Shockey in Buono v. Norton, No. EDCV01– 

216–RT (CD Cal., Mar. 13, 2002) (Exh. 17); Brief for VFW et al. as 
2 SALAZAR v. BUONO 

Opinion of ALITO, J. 

(VFW), Death Valley Post 2884, and in 1934, they raised a 

simple white cross on an outcropping called Sunrise Rock 

to honor fallen American soldiers.2 These veterans selected Sunrise Rock “in part because they believed there 

was a color shading on the Rock in the shape of an American soldier or ‘doughboy.’”3 

One of these men was John Riley Bembry, a miner who

had served as a medic and had thus presumably witnessed 

the carnage of the war firsthand.4 It is said that Mr. Bembry was not a particularly religious man, but he nevertheless agreed to look after the cross and did so for some 

years.5 

The Sunrise Rock monument was located on land belonging 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,6 and private citizens are permitted to go 

on and to use federal land for a variety of purposes.7 Al-

—————— 

Amici Curiae 6–7, 15 (hereinafter VFW Brief); see also B. Ausmus, East

Mojave Diary 116 (1989) (hereinafter Ausmus). 2See Luellen Memo; VFW Brief 15–16. 3 Id., at 15. 4See Tr. of Oral Arg. 55; VFW Brief 7, 16; see also Ausmus 116. 

5See VFW Brief 7, 16. 6See App. 79, 81 (testimony of respondent) (noting that when he first 

saw the monument, he did not know whether it was on public or private 

land); id., at 80 (describing Mojave Preserve as “primarily federal land 

with a large amount of inholdings of non-federal land”); see also Wilkie 

v. Robbins, 551 U. S. 537, 541–543 (2007). 7See Taylor Grazing Act, 48 Stat. 1269, as amended, 43 U. S. C. §315 

et seq.; General Mining Act of 1872, Rev. Stat. 2319, 30 U. S. C. §22; 

Andrus v. Shell Oil Co., 446 U. S. 657, 658 (1980); see also E. Nystrom,

Dept. of Interior, National Park Service, From Neglected Space To

Protected Place: An Administrative History of Mojave National Preserve, ch. 2 (Mar. 2003) (describing mining and grazing in Mojave

Preserve), online at http://www.nps.gov/history/history/online_books/

moja/adhi.htm (all Internet materials as visited Apr. 23, 2010, and 

available in Clerk of Court’s case file). 
Cite as: 559 U. S. ____ (2010) 3 

Opinion of ALITO, J. 

though Sunrise Rock was federally owned, Mr. Bembry 

and his fellow veterans took it upon themselves to place

their monument on that spot, apparently without obtaining approval from any federal officials, and this use of 

federal land seems to have gone largely unnoticed for 

many years, in all likelihood due to the spot’s remote and 

rugged location. 

Sunrise Rock is situated far from any major population 

center; temperatures often exceed 100 degrees Fahrenheit 

in the summer; and visitors are warned of the dangers of 

traveling in the area.8 As a result, at least until this 

litigation, it is likely that the cross was seen by more

rattlesnakes than humans. 

Those humans who made the trip to see the monument 

appear to have viewed it as conveying at least two significantly different messages. See Pleasant Grove City, Utah 

v. Summum, 555 U. S. ___, ___–___ (2009) (slip op., at 11–

12) (“The meaning conveyed by a monument is generally 

not a simple one,” and a monument may be “interpreted by

different observers, in a variety of ways”). The cross is of 

course the preeminent symbol of Christianity, and Easter 

services have long been held on 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 and, particularly for those with searing memories of The Great War, the symbol that was selected, a

plain unadorned white cross, no doubt evoked the unforgettable image of the white crosses, row on row, that

marked the final resting places of so many American 

soldiers who fell in that conflict. 

This is roughly how things stood until the plaintiff in 

—————— 

8See Dept. of Interior, National Park Service, Mojave National Preserve, Operating Hours & Seasons, http://www.nps.gov/moja/planyourvisit/ 

hours.htm; D. Casebier, Mojave Road Guide: An Adventure Through 

Time 114 (1999); 371 F. 3d 543, 549 (CA9 2004). 
4 SALAZAR v. BUONO 

Opinion of ALITO, J. 

this case, an employee of the National Park Service who 

sometimes viewed the cross during the performance of his 

duties and claims to have been offended by its presence on 

federally owned land, brought this suit and obtained an

injunction restraining the Federal Government from 

“permitting the display of the Latin cross in the area of

Sunrise Rock.” App. to Pet. for Cert. 146a. After the 

Ninth Circuit affirmed that decision, and the Government 

elected not to seek review by this Court, Congress faced a

problem.

If Congress had done nothing, the Government would 

have been required to take down the cross, which had

stood on Sunrise Rock for nearly 70 years, and this removal would have been viewed by many as a sign of disrespect for the brave soldiers whom the cross was meant to 

honor. The demolition of this venerable if unsophisticated,

monument would also have been interpreted by some as an 

arresting symbol of a Government that is not neutral but 

hostile on matters of religion and is bent on eliminating 

from all public places and symbols any trace of our country’s religious heritage. Cf. Van Orden v. Perry, 545 U. S. 

677, 704 (2005) (BREYER, J., concurring in judgment). 

One possible solution would have been to supplement 

the monument on Sunrise Rock so that it appropriately 

recognized the religious diversity of the American soldiers

who gave their lives in the First World War. In American 

military cemeteries overseas, the graves of soldiers who 

perished in that war were marked with either a white 

cross or a white Star of David.9 More than 3,500 Jewish 

—————— 

9See D. Holt, American Military Cemeteries 473, 474 (1992); see 

also American Battle Monuments Commission, http://www.abmc.gov/ 

cemeteries / cemeteries.php (containing photographs of the two 

types of markers). This policy presumably reflected the religious makeup of the Armed Forces at the time of the First World

War. Today, veterans and their families may select any of 39 

types of headstones. See U. S. Dept. of Veterans Affairs, Available 
Cite as: 559 U. S. ____ (2010) 5 

Opinion of ALITO, J. 

soldiers gave their lives for the United States in World 

War I,10 and Congress might have chosen to place a Star of

David on Sunrise Rock so that the monument would duplicate those two types of headstones. But Congress may

well have thought—not without reason—that the addition

of yet another religious symbol would have been unlikely

to satisfy the plaintiff, his attorneys, or the lower courts

that had found the existing monument to be unconstitutional on the ground that it impermissibly endorsed

religion.

Congress chose an alternative approach that was designed to eliminate any perception of religious sponsorship 

stemming from the location 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 mechanism that Congress selected is one 

that is quite common in the West, a “land exchange.”11 

Congress enacted a law under which ownership of the 

parcel of land on which Sunrise Rock is located would be 

transferred to the VFW in exchange for another nearby

parcel of equal value. Congress required that the Sunrise 

Rock parcel be used for a war memorial, §8121(a), 117 

Stat. 1100, but Congress did not prevent the VFW from

supplementing the existing monument or replacing it with

a war memorial of a different design. Although JUSTICE 

—————— 

Emblems of Belief for Placement on Government Headstones and 

Markers, http://www.cem.va.gov/hm/hmemb.asp. 10See J. Fredman & L. Falk, Jews in American Wars 100–101 (5th 

ed. 1954); Brief for Jewish War Veterans of the United States of America, Inc. as Amicus Curiae 33. 11See G. Draffan & J. Blaeloch, Commons or Commodity? The Dilemma of Federal Land Exchanges 10 (2000). Congressionally authorized land exchanges are common. See, e.g., Consolidated Natural 

Resources Act of 2008, §101(d), 122 Stat. 758; National Defense Authorization Act for Fiscal Year 2008, §2845, 122 Stat. 554; City of Yuma

Improvement Act, §3, 120 Stat. 3369; Act of Dec. 23, 2004, §1, 118 Stat. 

3919. 
6 SALAZAR v. BUONO 

Opinion of ALITO, J. 

STEVENS characterizes this land exchange as one that 

endorses “a particular religious view,” post, at 26 (dissenting opinion), it is noteworthy that Congress, in which our 

country’s religious diversity is well represented, passed 

this law by overwhelming majorities: 95–0 in the Senate 

and 407–15 in the House. See 149 Cong. Rec. H8793 

(Sept. 24, 2003); id., at S11943 (Sept. 25, 2003). In my

view, there is no legal ground for blocking the implementation of this law. 

The dissent contends that the land transfer would violate the District Court injunction, but that argument, for

the reasons explained in JUSTICE SCALIA’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 allow the cross to remain on federal 

land. 

There is also no merit in JUSTICE STEVENS’ contention 

that implementation of the statute would constitute an

endorsement of Christianity and would thus violate the 

Establishment Clause. Assuming that it is appropriate to 

apply the so-called “endorsement test,” this test would not 

be violated by the land exchange. The endorsement test 

views a challenged display through the eyes of a hypothetical reasonable observer who is deemed to be aware of 

the history and all other pertinent facts relating to a 

challenged display. See ante, at 16–17 (opinion of 

KENNEDY, J.). Here, therefore, this observer would be 

familiar with the origin and history of the monument and 

would also know both that the land on which the monument is located is privately owned and that the new owner 

is under no obligation to preserve the monument’s present 

design. With this knowledge, a reasonable observer would

not view the land exchange as the equivalent of the construction of an official World War I memorial on the National Mall. Cf. post, at 26. Rather, a well-informed observer would appreciate that the transfer represents an 
Cite as: 559 U. S. ____ (2010) 7 

Opinion of ALITO, J. 

effort by Congress to address a unique situation and 

to find a solution that best accommodates conflicting 

concerns. 

Finally, I reject JUSTICE STEVENS’ suggestion 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.” Citizens United v. Federal Election Comm’n, 

558 U. S. ___, ___ (2010) (slip op., at 70) (STEVENS, J., 

concurring in part and dissenting in part). Congress has

shown notable solicitude for the rights of religious minorities. See, e.g., Religious Freedom Restoration Act of 1993, 

42 U. S. C. §2000bb et seq.; Religious Land Use and Institutionalized 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 the 

religious message of the cross; rather, I see no reason to 

doubt that Congress’ consistent goal, in legislating with 

regard to the Sunrise Rock monument, has been to commemorate our Nation’s war dead and to avoid the disturbing symbolism that would have been created by the destruction of the monument. 

For these reasons, I would reverse the decision below 

and remand with instructions to vacate the order prohibiting the implementation of the land-transfer statute. 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

SCALIA, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 08–472 

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS v. FRANK BUONO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 28, 2010] 

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

concurring in the judgment. 

I agree with the plurality that the Court of Appeals

erred in affirming the District Court’s order enjoining the

transfer of the memorial to the Veterans of Foreign Wars 

(VFW). My reason, however, is quite different: In my view 

we need not—indeed, cannot—decide the merits of the 

parties’ dispute, because Frank Buono lacks Article III 

standing to pursue the relief he seeks. The District Court 

had no power to award the requested relief, and our authority is limited to “‘announcing the fact and dismissing 

the cause.’” Steel Co. v. Citizens for Better Environment, 

523 U. S. 83, 94 (1998) (quoting Ex parte McCardle, 7 

Wall. 506, 514 (1869)). 

The plurality is correct that Buono’s standing to obtain 

the original injunction is not before us. See ante, at 7.1 

—————— 

1The Court of Appeals’ conclusion that Buono had standing to seek

the original injunction does not, however, control our decision here 

under the law-of-the-case doctrine. That doctrine comes into play only

if an issue we are asked to resolve has already been decided in the same

litigation. See Quern v. Jordan, 440 U. S. 332, 347, n. 18 (1979). In its 

earlier decision, the Ninth Circuit addressed only Buono’s standing to

seek the original injunction barring the display of the cross on public

land. See Buono v. Norton, 371 F. 3d 543, 546–548 (2004). It had no 

occasion to address his standing to seek an expansion of the injunction

to bar a transfer enabling the cross’s display on private property. 
2 SALAZAR v. BUONO 

SCALIA, J., concurring in judgment 

Nor is Buono’s standing to request enforcement of the

original injunction at issue. If he sought only to compel 

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 District Court awarded in this 

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 context, is that it

proscribed the cross’s display on federal land. Buono’s 

alleged injuries arose from the cross’s presence on public 

property, see App. 50, 59, and the injunction accordingly 

prohibited the Government, its “employees, agents, and 

those in active concert with [them] . . . from permitting the 

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” the

cross’s display at a particular location makes sense only if 

the Government owns the location. As the proprietor, it 

can remove the cross that private parties have erected and

deny permission to erect another. But if the land is privately owned, the Government can prevent the cross’s 

display only by making it illegal. Prohibitory legislation

does not consist of a mere refusal 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 

—————— 

Moreover, Buono failed to raise the issue in his brief in opposition to

certiorari, and we may deem it waived. See this Court’s Rule 15.2; cf. 

Knowles v. Iowa, 525 U. S. 113, 116, n. 2 (1998). 2The principal dissent does not dispute that the original injunction 

did not require the Government to ban the cross’s display on private

land, yet it insists that the injunction nonetheless forbade transferring 

the land to a private party who could keep the cross in place. Post, at 

6–7 (opinion of STEVENS, J.). But there is no basis in the injunction’s 

text for treating a sale of the land to a private purchaser who does not

promise to take the cross down as “permitting” the cross’s display, 
Cite as: 559 U. S. ____ (2010) 3 

SCALIA, J., concurring in judgment 

The District Court’s 2005 order purporting to “enforce” 

the earlier injunction went well beyond barring the display 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 them . . . from 

implementing the provisions of Section 8121 of Public Law 

108–87,” the statutory provision enacted after the original

injunction that directs the Executive Branch to transfer 

the memorial to the VFW. Id., at 99a. 

Because Buono seeks new relief, he must show (and the 

District Court should have ensured) that he has standing 

to pursue it. As the party invoking federal-court jurisdiction, Buono “bears the burden of showing that he has

standing for each type of relief sought,” Summers v. Earth 

Island Institute, 555 U. S. ___, ___ (2009) (slip op., at 4); 

see Los Angeles v. Lyons, 461 U. S. 95, 105 (1983). A 

plaintiff cannot sidestep Article III’s requirements by 

combining a request for injunctive relief for which he has 

standing with a request for injunctive relief for which he 

lacks standing. And for the same reason, a plaintiff cannot ask a court to expand an existing injunction unless he 

has standing to seek the additional relief.

Buono must therefore demonstrate that the additional 

relief he sought—blocking the transfer of the memorial to

a private party—will “redress or prevent actual or imminently threatened injury to [him] caused by private or 

—————— 

when failing to forbid the cross’s presence on already-private land

within the Mojave National Preserve would not be treated as such. The 

latter no less involves “allow[ing] the act or existence of” or “tolerat[ing]” the display of the cross. Webster’s New International Dictionary 1824 (2d ed. 1957). The principal dissent responds that in

determining whether the transfer complies with the original injunction 

we “cannot start from a baseline in which the cross has already been 

transferred.” Post, at 7. But the effect of transferring the land to a 

private party free to keep the cross standing is identical, so far as the 

original injunction is concerned, to allowing a party who already owned 

the land to leave the cross in place. 
4 SALAZAR v. BUONO 

SCALIA, J., concurring in judgment 

official violation of law.” Summers, supra, at ___ (slip op., 

at 4). He has failed, however, to allege any actual or 

imminent injury. To begin with, the predicate for any 

injury he might assert—that the VFW, after taking possession 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 reverts to the Government only if “the

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 contrary, his amended complaint averred

that “he is deeply offended by the display of a Latin Cross

on government-owned property” but “has no objection to 

Christian symbols on private property.” App. 50. In a 

subsequent deposition he agreed with the statement that 

“[t]he only thing that’s offensive about this cross is that 

[he has] discovered that it’s located on federal land.” Id., 

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

—————— 

3Buono argues that the Government’s continued supervision of the 

site, its reversionary interest in the property, and the memorial’s 

ongoing designation as a national memorial add to the Establishment 

Clause violation. Brief for Respondent 37–48. But those aspects would 

be irrelevant if the cross were no longer displayed. 4The principal dissent insists, post, at 4–5, n. 2, that it is clear the 

cross will remain because the VFW asserted in an amicus brief that it 

“intends to maintain and preserve the Veterans Memorial as a memorial to United States veterans,” and elsewhere referred to “the sevenfoot-tall cross and plaque that comprise the Veterans Memorial,” Brief 

for VFW of the United States et al. as Amici Curiae 4, 7. But the 

group’s stated intentions do not prove that the cross will stay put. The 

VFW might not follow through on its plans (this VFW post already

became “defunct” once during this litigation, id., at 34); it might move

the cross to another private parcel and substitute a different monument 

on Sunrise Rock; or it might sell the land to someone else who decides 

to honor the dead without the cross. 
Cite as: 559 U. S. ____ (2010) 5 

SCALIA, J., concurring in judgment 

he reiterated that although the “presence of the cross on

federally owned land in the Preserve deeply offends [him] 

and impairs [his] enjoyment of the Preserve,” he “ha[s] no

objection to Christian symbols on private property.” Id., at 

64–65. In short, even assuming that being “deeply offended” by a religious display (and taking steps to avoid 

seeing it) constitutes a cognizable injury, Buono has made

clear that he will not be offended.5 

These same considerations bear upon the plurality’s

assertion that Buono has standing to “prevent the Government from frustrating or evading” the original injunction, ante, at 8. If this refers to frustration or evasion in a 

narrow sense, the injunction is in no need of—indeed, is 

insusceptible of—protection. It was issued to remedy the

sole complaint that Buono had brought forward: erection 

of a cross on public land. And it was entirely effective in

remedying that complaint, having induced Congress to

abandon public ownership of the land. If meant in this 

narrow sense, the plurality’s assertion of a need to prevent 

frustration or evasion by the Government ignores the

reality that the District Court’s 2005 order awarded new 

relief beyond the scope of the original injunction. The 

revised injunction is directed at Buono’s new complaint

that the manner of abandoning public ownership and the 

—————— 

5The principal dissent argues that despite these disclaimers in 

Buono’s complaint, deposition, and declaration, his real injury is his 

inability “to freely use the area of the Preserve around the cross because the Government’s unconstitutional endorsement of the cross will 

induce him to avoid the Sunrise Rock area.” Post, at 4–5, n. 2 (internal 

quotation marks and citation omitted). But the only “endorsement” of 

which Buono complained was “[t]he placement of the Cross on federally-owned land,” App. 59, which “offend[s]” him only because the

property “is not open to groups and individuals to erect other freestanding, permanent displays,” App. 50. Nothing in Buono’s complaint,

deposition, or declaration establishes that he will be unable “to freely

use the area of the Preserve” if Sunrise Rock is made private property 

and its new proprietor displays the cross. 
6 SALAZAR v. BUONO 

SCALIA, J., concurring in judgment 

nature of the new private ownership violate the Establishment Clause. Now it may be that a court has subjectmatter jurisdiction to prevent frustration or evasion of its 

prior injunction in a broader sense—that is, to eliminate 

an unconstitutional manner of satisfying that prior injunction. But it surely cannot do so unless it has before it 

someone who has standing to complain of that unconstitutional manner. If preventing frustration or evasion of an 

injunction includes expanding it to cover additional actions that produce no concrete harm to the original plaintiff, our standing law in this area will make no sense.

It is no answer that a district court has discretion to 

expand an injunction it has issued if it finds the existing 

terms are not fulfilling the original purpose. Doubtless it 

can do that, and is in that sense the master of its own 

injunctions. But whether the District Court abused that 

discretion by enlarging the injunction is beside the point. 

What matters is that it granted relief beyond the existing 

order, and that Buono must have had standing to seek the

extension. 

It also makes no difference that the District Court said 

it was merely enforcing its original injunction. The question is whether in fact the new order goes beyond the old 

one. If so, the court must satisfy itself of jurisdiction to

award the additional relief—which includes making certain the plaintiff has standing. See Steel Co., 523 U. S., at 

94. That is true whether the court revisits the injunction 

at a party’s request or on its own initiative; Article III’s 

case-or-controversy requirement is not merely a prerequisite to relief, but a restraint on judicial power. See Summers, supra, at ___ (slip op., at 4).6 

—————— 

6 I agree with JUSTICE BREYER that in interpreting an ambiguous

injunction we should give great weight to the interpretation of the

judge who issued it. Post, at 3 (dissenting opinion). But that does not 

mean we must accept any construction a district court places upon an

order it has issued. Here there is no reasonable reading of the original 
Cite as: 559 U. S. ____ (2010) 7 

SCALIA, J., concurring in judgment 

* * * 

Keeping within the bounds of our constitutional authority often comes at a cost. Here, the litigants have lost

considerable time and money disputing the merits, and we 

are forced to forgo an opportunity to clarify the law. But 

adhering to Article III’s limits upon our jurisdiction respects the authority of those whom the people have chosen 

to make and carry out the laws. In this case Congress has

determined that transferring the memorial to private 

hands best serves the public interest and complies with

the Constitution, and the Executive defends that decision 

and seeks to carry it out. Federal courts have no warrant 

to revisit that decision—and to risk replacing the people’s 

judgment with their own—unless and until a proper case 

has been brought before them. This is not it. 

—————— 

injunction that would bar the land transfer but would not also require 

the Government to ban “the display of the Latin cross” on private land 

“in the area of Sunrise Rock in the Mojave National Preserve,” App. to

Pet. for Cert. 146a—an implausible interpretation no one advocates. 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

STEVENS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 08–472 

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS v. FRANK BUONO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 28, 2010] 

JUSTICE STEVENS, with whom JUSTICE GINSBURG and 

JUSTICE SOTOMAYOR join, dissenting. 

In 2002 Congress designated a “five-foot-tall white

cross” located in the Mojave National Preserve “as a national memorial commemorating United States participation in World War I and honoring the American veterans 

of that war.” Department of Defense Appropriations Act,

Pub. L. 107–117, §8137(a), 115 Stat. 2278. Later that 

year, in a judgment not open to question, the District 

Court determined that the display of that cross violated

the Establishment Clause because it “convey[ed] a message of endorsement of religion.” Buono v. Norton, 212 

F. Supp. 2d 1202, 1217 (CD Cal. 2002) (Buono I). The 

question in this case is whether Congress’ subsequent

decision to transfer ownership of the property underlying

the cross cured that violation. 

“The Establishment Clause, if nothing else, prohibits

government from ‘specifying details upon which men and 

women who believe in a benevolent, omnipotent Creator

and Ruler of the world are known to differ.’” Van Orden v. 

Perry, 545 U. S. 677, 718 (2005) (STEVENS, J., dissenting) 

(quoting Lee v. Weisman, 505 U. S. 577, 641 (1992) 

(SCALIA, J., dissenting)). A Latin cross necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as nonbelievers, 
2 SALAZAR v. BUONO 

STEVENS, J., dissenting 

are known to differ. In my view, the District Court was 

right to enforce its prior judgment by enjoining Congress’ 

proposed remedy—a remedy that was engineered to leave 

the cross intact and that did not alter its basic meaning. I 

certainly agree that the 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 message. 

I 

As the history recounted by the plurality indicates, this

case comes to us in a procedural posture that significantly 

narrows the question presented to the Court. In the first 

stage of this litigation, the District Court and the Court of 

Appeals ruled that the Government violated the Establishment Clause by permitting the display of a single

white Latin cross at Sunrise Rock. Those courts further 

ruled that the appropriate remedy was an injunction

prohibiting the Government from “permitting the display

of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” App. 39. The Government declined to seek a writ of certiorari following those rulings. 

Accordingly, for the purpose of this case, it is settled that

“the Sunrise Rock cross will project a message of government endorsement [of religion] to a reasonable observer,” 

Buono v. Norton, 371 F. 3d 543, 549 (CA9 2004) (Buono 

II), and that the District Court’s remedy for that endorsement was proper.

We are, however, faced with an additional fact: Congress has enacted a statute directing the Secretary of the

Interior to transfer a 1-acre parcel of land containing the 

cross to the Veterans of Foreign Wars (VFW), subject to 

certain conditions, in exchange for a 5-acre parcel of land 

elsewhere in the Preserve. See Department of Defense

Appropriations Act, 2004, Pub. L. 108–87, §8121, 117 Stat.

1100. The District Court found that the land transfer 
Cite as: 559 U. S. ____ (2010) 3 

STEVENS, J., dissenting 

under §8121 “violate[d] [the] court’s judgment ordering a

permanent injunction” and did not “actually cur[e] the 

continuing Establishment Clause violation.” Buono v. 

Norton, 364 F. Supp. 2d 1175, 1182 (CD Cal. 2005) (Buono 

III). The District Court therefore enforced its 2002 judgment by enjoining the transfer, without considering 

whether “the land transfer itself is an independent violation of the Establishment Clause.” Ibid., n. 8. Because 

the District Court did not base its decision upon an independent Establishment Clause violation, the constitutionality of the land-transfer statute is not before us. See 

ante, at 10. Instead, the question we confront is whether 

the District Court properly enforced its 2002 judgment by

enjoining the transfer.

In answering that question we, like the District Court,

must first consider whether the transfer would violate the 

2002 injunction. We must then consider whether changed 

circumstances nonetheless rendered enforcement of that 

judgment inappropriate; or conversely whether they made 

it necessary for the District Court to bar the transfer, even 

if the transfer is not expressly prohibited by the prior

injunction, in order to achieve the intended objective of the

injunction. The plurality correctly notes that “‘a court 

must 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) (hereinafter Wright & Miller)), and “‘[a] continuing decree of injunction directed to events to come is subject always to

adaptation as events may shape the need,’” ante, at 14 

(quoting United States v. Swift & Co., 286 U. S. 106, 114 

(1932)).1 At the same time, it is axiomatic that when a 

—————— 

1One point of contention: I accept as a general matter that a court 

must consider whether “legislative action has undermined the basis 

upon which relief has previously been granted.” Ante, at 14. But the 
4 SALAZAR v. BUONO 

STEVENS, J., dissenting 

party seeks to enforce or modify an injunction, the only

circumstances that matter are changed circumstances. 

See Swift, 286 U. S., at 119 (“The injunction, whether

right or wrong, is not subject to impeachment in its application to the conditions that existed at its making”). 

I further accept that the District Court’s task was to

evaluate the changed circumstances “in light of the objectives of the 2002 injunction.” Ante, at 16. This case does 

not simply pit a plaintiff’s “prior showing of illegality” 

against a defendant’s claim that “changed circumstances

have rendered prospective relief inappropriate.” Ante, at 

14. That formulation implies that the changed circumstances all cut in one direction, against prospective relief, 

and that the defendant has asked the court to alleviate its 

obligations. But it is important to note that in this case, 

the Government did not move to “alleviate or eliminate 

conditions or restrictions imposed by the original decree”

so as to permit the transfer. Wright & Miller §2961, at 

397. Rather, it was the beneficiary of the original injunction who went back into court seeking its enforcement or

modification in light of the transfer. Plainly, respondent

had standing to seek enforcement of a decree in his favor.2 

—————— 

effect of the legislative action in this case is different from its effect in

our cases espousing that principle, which stand for the proposition that 

if a statutory “right has been modified by the competent authority” 

since the decree, then an injunction enforcing the prior version of that

right must be modified to conform to the change in the law. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 432 (1856); see 

also Railway Employees v. Wright, 364 U. S. 642, 651 (1961) (“In a case

like this the District Court’s authority to adopt a consent decree comes

only from the statute which the decree is intended to enforce. . . . [I]t

[must] be free to modify the terms of a consent decree when a change in 

law brings those terms in conflict with statutory objectives”). In a 

constitutional case such as this, legislative action may modify the facts,

but it cannot change the applicable law. 2To the extent the Government challenges respondent’s standing to 

seek the initial injunction, that issue is not before the Court for the

reasons the plurality states. See ante, at 7. Moreover, in my view 
Cite as: 559 U. S. ____ (2010) 5 

STEVENS, J., dissenting 

Respondent argued that such action was necessary,

either to enforce the plain terms of the 2002 injunction or

to “achieve the purposes of the provisions of the decree,” 

United States v. United Shoe Machinery Corp., 391 U. S. 

244, 249 (1968); see Wright & Miller §2961, at 393 (“[A] 

court must continually be willing to redraft the order at 

the request of the party who obtained equitable relief in

order to insure that the decree accomplishes its intended

result”). Only at that point did the Government argue

that changed circumstances made prospective relief unnecessary. This difference in focus is a subtle one, but it is 

important to emphasize that the question that was before 

the District Court—and that is now before us—is whether 

enjoining the transfer was necessary to effectuate the

letter or logic of the 2002 judgment.

Although I agree with the plurality’s basic framework, I

disagree with its decision to remand the case to the District Court. The District Court already “engage[d] in the

appropriate inquiry,” ante, at 10, and it was well within its 

rights to enforce the 2002 judgment. First, the District 

—————— 

respondent has standing even under the analysis that JUSTICE SCALIA 

undertakes. It is not at all “speculative,” ante, at 4 (opinion concurring

in judgment), that the VFW will continue to display the cross. VFW 

Post 385, the beneficiary of the land transfer, has filed an amici brief in 

this case indicating it “intends to maintain and preserve the Veterans

Memorial,” Brief for Veterans of Foreign Wars of the United States 

et al. as Amici Curiae 4, by which it means the cross, id., at 7 (identifying the Veterans Memorial as the “cross and plaque”). Respondent did,

in his amended complaint, aver that he was offended specifically “by 

the display of a Latin Cross on government-owned property.” App. 50.

But his claimed injury is that he is “unable to freely use the area of the

Preserve around the cross,” Buono v. Norton, 371 F. 3d 543, 547 (CA9 

2004) (Buono II) (internal quotation marks omitted), because the 

Government’s unconstitutional endorsement of the cross will induce 

him to avoid the Sunrise Rock area, even though it offers the most

convenient route to the Preserve, App. 65. That endorsement and 

respondent’s resulting injury not only persist, but have been aggravated by the Government’s actions since the complaint was filed. 
6 SALAZAR v. BUONO 

STEVENS, J., dissenting 

Court properly recognized that the transfer was a means

of “permitting”—indeed, encouraging—the display of the 

cross. The transfer therefore would violate the terms of 

the court’s original injunction. Second, even if the transfer 

would not violate the terms of the 2002 injunction, the

District Court properly took into account events that

transpired since 2002 and determined that barring the

transfer was necessary to achieve the intended result of

the 2002 decree, as the transfer would not eliminate government endorsement of religion. 

II 

The first step in the analysis is straightforward: The

District Court had to ask whether the transfer of the 

property would violate the extant injunction. Under the 

terms of that injunction, the answer was yes.

The 2002 injunction barred the Government from “permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” App. 39. The 

land-transfer statute mandated transfer of the land to an 

organization that has announced its intention to maintain 

the cross on Sunrise Rock. That action surely “permit[s]” 

the display of the cross. See 11 Oxford English Dictionary

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 Government would no longer exert direct 

control over the cross. But the transfer itself would be an 

act permitting its display. 

I therefore disagree with JUSTICE SCALIA that the “only

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 owned, JUSTICE SCALIA may be correct that the 

cross’ display on Sunrise Rock would not violate the injunction because the Government would not have to do

anything to allow the cross to stand, and the Government 
Cite as: 559 U. S. ____ (2010) 7 

STEVENS, J., dissenting 

could try to prevent its display only by making such a 

display illegal. But the Government does own this land, 

and the transfer statute requires the Executive Branch to

take an affirmative act (transfer to private ownership) 

designed to keep the cross in place. In evaluating a claim

that the Government would impermissibly “permit” the 

cross’ display by effecting a transfer, a court cannot 

start from a baseline in which the cross has already been 

transferred. 

Moreover, §8121 was designed specifically to foster the

display of the cross. Regardless of why the Government

wanted to “accommodat[e]” the interests associated with

its display, ante, at 13 (plurality opinion), it was not only

foreseeable but also intended that the cross would remain 

standing. Indeed, so far as the record indicates, the Government had no other purpose for turning over this land to 

private hands. It was therefore proper for the District 

Court to find that the transfer would violate its 2002 

injunction and to enforce that injunction against the 

transfer. 

III 

As already noted, it was respondent, the beneficiary of 

the injunction, who moved the District Court for relief. 

When the beneficiary of an injunction seeks relief “to 

achieve the purposes of the provisions of the decree,” 

United Shoe Machinery Corp., 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 2002 judgment, 

the District Court properly inquired into whether enjoining the transfer was necessary to achieve the objective of

that judgment. The Government faces a high burden in

arguing the District Court exceeded its authority. A decree “may not be changed in the interests of the defen­
8 SALAZAR v. BUONO 

STEVENS, J., dissenting 

dants if the purposes of the litigation . . . have not been

fully achieved.” Id., at 248 (emphasis deleted). And contrary to the Government’s position, the changed circumstances in this case support, rather than count against, 

the District Court’s enforcement decision. 

The objective of the 2002 judgment, as the plurality 

grudgingly allows, was to “avoi[d] the perception of governmental endorsement” of religion. Ante, at 16; see 

Buono III, 364 F. Supp. 2d, at 1178 (analyzing “‘whether

government action endorsing religion has actually ceased’” 

in light of the transfer). The parties do not disagree on

this point; rather, they dispute whether the transfer would

end government endorsement of the cross. Compare Brief

for Petitioners 21 (“Congress’s transfer of the land . . .

ends any governmental endorsement of the cross”) with 

Brief for Respondent 34 (“[T]he government’s endorsement 

of the Christian cross is not remedied” by the land transfer). The District Court rightly found that the transfer 

would not end government endorsement of the cross. 

A government practice violates the Establishment 

Clause if it “either has the purpose or effect of ‘endorsing’ 

religion.” County of Allegheny v. American Civil Liberties 

Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592 

(1989). “Whether the key word is ‘endorsement,’ ‘favoritism,’ or ‘promotion,’ the essential principle remains the 

same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on 

questions of religious belief or from ‘making adherence to 

a religion relevant in any way to a person’s standing 

in the political community.’” Id., at 593–594 (quoting 

Lynch v. Donnelly, 465 U. S. 668, 687 (1984) (O’Connor, J., 

concurring)). 

The 2002 injunction was based on a finding that display 

of the cross had the effect of endorsing religion. That is, 

“the Sunrise Rock cross . . . project[s] a message of government endorsement [of religion] to a reasonable ob­
Cite as: 559 U. S. ____ (2010) 9 

STEVENS, J., dissenting 

server.” Buono II, 371 F. 3d, at 549. The determination 

that the Government had endorsed religion necessarily

rested on two premises: first, that the Government endorsed the cross, and second, that the cross “take[s] a 

position on questions of religious belief” or “‘mak[es] adherence to religion relevant . . . to a person’s standing in 

the political community,’” County of Allegheny, 492 U. S., 

at 594. Taking the District Court’s 2002 finding of an

Establishment Clause violation as res judicata, as we 

must, the land transfer has the potential to dislodge only 

the first of those premises, in that the transfer might 

change the Government’s endorsing relationship with the 

cross. As I explain below, I disagree that the transfer 

ordered by §8121 would in fact have this result. But it is 

also worth noting at the outset that the transfer statute

could not (and does not) dislodge the second premise—that 

the cross conveys a religious message. Continuing government endorsement of the cross is thus continuing

government endorsement of religion. 

In my view, the transfer ordered by §8121 would not end

government endorsement of the cross for two independently sufficient reasons. First, after the transfer it would 

continue to appear to any reasonable observer that the 

Government has endorsed the cross, notwithstanding that

the name has changed on the title to a small patch of 

underlying land. This is particularly true because the 

Government has designated the cross as a national memorial, and that endorsement continues regardless of 

whether the cross sits on public or private land. Second, 

the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to 

preserve its display. Congress’ intent to preserve the

display 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 government 
10 SALAZAR v. BUONO 

STEVENS, J., dissenting 

endorsement of the cross and the religious message it 

conveys. Rather, the plurality concludes that the District

Court did not conduct an appropriate analysis, and it 

remands the case for a do-over. I take up each of the 

purported faults the plurality finds in the District Court’s 

analysis in my examination of the reasons why the transfer does not cure the existing Establishment Clause

violation. 

Perception of the Cross Post-Transfer 

The 2002 injunction was based upon a finding of impermissible effect: The “Sunrise Rock cross . . . project[s] a

message of government endorsement [of religion] to a

reasonable observer.” Buono II, 371 F. 3d, at 549. The 

transfer would not end that impermissible state of affairs

because the cross, post-transfer, would still have “the 

effect of communicating a message of government endorsement . . . of religion.” Lynch, 465 U. S., at 692 

(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 “reasonable observer would 

perceive governmental endorsement of the message” the 

cross conveys. Buono v. Kempthorne, 527 F. 3d 758, 783 

(CA9 2008) (Buono IV).

3 

—————— 

3The plurality faults the District Court for not engaging in this

analysis, but the District Court did implicitly consider how a reasonable observer would perceive the cross post-transfer when it analyzed

the terms of the transfer, the Government’s continuing property rights 

in the conveyed land, and the history of the Government’s efforts to 

preserve the cross. Furthermore, the Court of Appeals affirmed the

District Court’s order on the express ground that a reasonable observer 

would still perceive government endorsement of the cross. See Buono 

IV, 527 F. 3d, at 782–783. 

THE CHIEF JUSTICE suggests this is much ado about nothing because

respondent’s counsel conceded that the injunction would not be violated 

were the Government to have gone through an “empty ritual” of taking

down the cross before transferring the land. Ante, at 1 (concurring 

opinion). But in the colloquy to which THE CHIEF JUSTICE refers, 
Cite as: 559 U. S. ____ (2010) 11 

STEVENS, J., dissenting 

In its original judgment, the Court of Appeals found 

that a well-informed reasonable observer would perceive 

government endorsement of religion, notwithstanding the

cross’ initial “placement by private individuals,” based 

upon the following facts: “that the cross rests on public

land[,] . . . that Congress has designated the cross as a war 

memorial and prohibited the use of funds to remove it, and

that the Park Service has denied similar access for expression by an adherent of the . . . Buddhist faith.” Buono II, 

371 F. 3d, at 550. After the transfer, a well-informed 

observer would know that the cross was no longer on 

public land, but would additionally be aware of the following facts: The cross was once on public land, the Government was enjoined from permitting its display, Congress

transferred it to a specific purchaser in order to preserve

its display in the same location, and the Government

maintained a reversionary interest in the land. From this 

chain of events, in addition to the factors that remain the 

same after the transfer, he would perceive government

endorsement of the cross.4 

—————— 

counsel assumed that the Government would not retain a reversionary

interest in the land, and that the cross would not retain its designation

as a national memorial. See Tr. of Oral Arg. 44–45. Even under THE 

CHIEF JUSTICE’s revised version of the hypothetical, I would not so 

quickly decide that taking down the cross makes no material difference. 

And counsel’s statement takes no position as to whether the hypothetical poses any constitutional problem independent of the injunction. 

Regardless, we must deal with the substance of the case before us,

which involves much more than Congress directing the Government to

execute a simple land transfer. 4A less informed reasonable observer, see Capitol Square Review and 

Advisory Bd. v. Pinette, 515 U. S. 753, 807 (1995) (STEVENS, J., dissenting), would reach the same conclusion because the cross would still 

appear to stand on Government property. The transfer merely “carv[es]

out a tiny parcel of property in the midst of this vast Preserve—like a 

donut hole with the cross atop it.” Buono v. Kempthorne, 527 F. 3d 

758, 783 (CA9 2008). For any reasonable observer, then, the transfer

simply would not change the effect of the cross. 
12 SALAZAR v. BUONO 

STEVENS, J., dissenting 

Particularly important to this analysis is that although 

the transfer might remove the implicit endorsement that 

presence on public land signifies, see Capitol Square 

Review and Advisory Bd. v. Pinette, 515 U. S. 753, 801 

(1995) (STEVENS, J., dissenting) (“The very fact that a sign

is installed on public property implies official recognition 

and reinforcement of its message”), it would not change

the fact that the Government has taken several explicit

actions to endorse this cross. In its decision upholding the

initial entry of the injunction, the Court of Appeals found

those actions contributed to a reasonable observer’s perception of government endorsement. Buono II, 371 F. 3d, 

at 550. Their significance does not depend upon the ownership of the land.

In 2000, and again after the District Court had entered 

its initial injunction, Congress passed legislation prohibiting the use of any federal funds to remove the cross from

its location on federal property. See Consolidated Appropriations Act, 2001, Pub. L. 106–554, App. D, §133, 114

Stat. 2763A–230; Department of Defense Appropriations

Act, 2003, Pub. L. 107–248, §8065(b), 116 Stat. 1551.

Thus, beyond merely acquiescing in the continued presence of a cross on federal property, Congress singled out

that cross for special treatment, and it affirmatively commanded that the cross must remain. 

Congress also made a more dramatic intervention. 

Without the benefit of any committee hearings or floor 

debate in either the Senate or the House of Representatives—indeed, without a moment of discussion in any 

official forum—Congress passed legislation officially designating the “five-foot-tall white cross” in the Mojave

Desert “as a national memorial commemorating United 

States participation in World War I and honoring the

American veterans of that war.” §8137(a), 115 Stat. 2278.

Thereafter, the cross was no longer just a local artifact; it

acquired a formal national status of the highest order. 
Cite as: 559 U. S. ____ (2010) 13 

STEVENS, J., dissenting 

Once that momentous step was taken, changing the identity of the owner of the underlying land could no longer 

change the public or private character of the cross. The 

Government has expressly adopted the cross as its own.5 

Even though Congress recognized this cross for its 

military associations, the solitary cross conveys an inescapably sectarian message. See Separation of Church and 

State Comm. v. Eugene, 93 F. 3d 617, 626 (CA9 1996) 

(O’Scannlain, J., concurring in result) (“[T]he City’s use of 

a cross to memorialize the war dead may lead observers to 

believe that the City has chosen to honor only Christian

veterans”). As the District Court observed, it is undisputed that the “[L]atin cross is the preeminent symbol of

Christianity. It is exclusively a Christian symbol, and not 

a symbol of any other religion.” Buono I, 212 F. Supp. 2d, 

at 1205. We have recognized the significance of the Latin

cross as a sectarian symbol,6 and no participant in this 

—————— 

5The plurality barely mentions this designation, except to assert that

the designation gave recognition to the historical meaning of the cross.

See ante, at 12. But the plurality does not acknowledge that when the

Ninth Circuit affirmed the 2002 judgment, it concluded that the designation is one of the factors that would lead a reasonable observer to 

perceive government endorsement of religion. See Buono II, 371 F. 3d, 

at 550. Nor does the plurality address the effect of that designation on

a reasonable observer’s perception of the cross, regardless of whether 

the cross sits on private land. See ante, at 16. 6See, e.g., Pinette, 515 U. S., at 760 (characterizing Ku Klux Klansponsored cross as religious speech); id., at 776 (O’Connor, J., concurring in part and concurring in judgment) (“[T]he cross is an especially 

potent sectarian symbol”); id., at 792 (Souter, J., concurring in part and

concurring in judgment) (“[T]he Latin cross . . . is the principal symbol 

of Christianity around the world, and display of the cross alone could

not reasonably be taken to have any secular point”); id., at 798, n. 3 

(STEVENS, J., dissenting) (“[T]he Latin cross is identifiable as a symbol 

of a particular religion, that of Christianity; and, further, as a symbol of 

particular denominations within Christianity”); County of Allegheny v. 

American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 

573, 661 (1989) (KENNEDY, J., concurring in judgment in part and

dissenting in part) (“[T]he [Establishment] Clause forbids a city to 
14 SALAZAR v. BUONO 

STEVENS, J., dissenting 

litigation denies that the cross bears that social meaning. 

Making a plain, unadorned Latin cross a war memorial 

does not make the cross secular. It makes the war memorial sectarian.7 

More fundamentally, however, the message conveyed by

the cross is not open to reconsideration given the posture 

of this case. The plurality employs a revealing turn of

phrase when it characterizes the cross as “a symbol that, 

while challenged under the Establishment Clause, has 

complex meaning beyond the expression of religious

views.” Ante, at 13. The days of considering the cross

itself as challenged under the Establishment Clause are 

over; it is settled that the Government is not permitted to 

endorse the cross. However complex the meaning of the 

cross, the Court of Appeals in 2004 considered and rejected the argument that its dual symbolism as a war 

memorial meant that government endorsement of the

cross did not amount to endorsement of religion. See 

Buono II, 371 F. 3d, at 549, n. 5. All we are debating at 

—————— 

permit the permanent erection of a large Latin cross on the roof of city

hall . . . because such an obtrusive year-round religious display would 

place the government’s weight behind an obvious effort to proselytize

on behalf of a particular religion”). 7Context is critical to the Establishment Clause inquiry, and not

every use of a religious symbol in a war memorial would indicate 

government endorsement of a religious message. See, e.g., Van Orden 

v. Perry, 545 U. S. 677, 701 (2005) (BREYER, J., concurring in judgment) 

(“[T]o determine the message that the text here conveys, we must

examine how the text is used. And that inquiry requires us to consider 

the context of the display”); County of Allegheny, 492 U. S., at 598 

(“[T]he effect of a crèche display turns on its setting”); Lynch v. Donnelly, 465 U. S. 668, 694 (1984) (O’Connor, J., concurring) (“Every

government practice must be judged in its unique circumstances to

determine whether it constitutes an endorsement or disapproval of

religion”). But this cross is not merely one part of a more elaborate 

monument that, taken as a whole, may be understood to convey a

primarily nonreligious message. Rather, the cross is the only symbol 

conveying any message at all. 
Cite as: 559 U. S. ____ (2010) 15 

STEVENS, J., dissenting 

this juncture is whether the shift from public to private

ownership of the land sufficiently distanced the Government from the cross; we are no longer debating the message the cross conveys to a reasonable observer. In arguing that Congress can legitimately favor the cross because 

of its purported double meaning, the plurality implicitly

tries to reopen what is closed.8 

The plurality also poses a different objection to consideration of whether the transfer would change a reasonable 

observer’s perception of the cross. The plurality suggests

that the “‘reasonable observer’ standard” may not “be the

appropriate framework” because “courts considering Establishment Clause challenges do not,” as a general matter, “inquire into ‘reasonable observer’ perceptions with

respect to objects on private land.” Ante, at 16. Once 

again, the plurality’s approach fails to pay heed to the 

posture of this case.

At the risk of stating the obvious, respondent is not 

simply challenging a private object on private land. Although “an Establishment Clause violation must be 

moored in government action of some sort,” Pinette, 515 

U. S., at 779 (O’Connor, J., concurring in part and concur­

—————— 

8The plurality’s assertions regarding the meaning of the cross are 

therefore beside the point. For the record, however, I cannot agree that 

a bare cross such as this conveys a nonsectarian meaning simply

because crosses are often used to commemorate “heroic acts, noble 

contributions, and patient striving” and to honor fallen soldiers. Ante, 

at 17. The cross is not a universal symbol of sacrifice. It is the symbol 

of one particular sacrifice, and that sacrifice carries deeply significant 

meaning for those who adhere to the Christian faith. The cross has 

sometimes been used, it is true, to represent the sacrifice of an individual, as when it marks the grave of a fallen soldier or recognizes a state 

trooper who perished in the line of duty. Even then, the cross carries a 

religious meaning. But the use of the cross in such circumstances is 

linked to, and shows respects for, the individual honoree’s faith and 

beliefs. I, too, would consider it tragic if the Nation’s fallen veterans

were to be forgotten. See ibid. But there are countless different ways, 

consistent with the Constitution, that such an outcome may be averted. 
16 SALAZAR v. BUONO 

STEVENS, J., dissenting 

ring in judgment), respondent’s objection to the transfer 

easily meets that test for two reasons. First, he is currently challenging official legislation, taken in response to

an identified Establishment Clause violation. That legislation would transfer public land to a particular private

party, with the proviso that the transferee must use the 

land to fulfill a specific public function or else the land 

reverts back to the Government. Second, even once the 

transfer is complete, the cross would remain a national

memorial. The cross is therefore not a purely “private”

object in any meaningful sense.

Notwithstanding these facts, the plurality appears to

conclude that the transfer might render the cross purely

private speech. It relies in part on the plurality opinion in 

Pinette for its suggestion that the reasonable observer 

standard may not be apposite, and Pinette addressed a 

privately owned cross displayed in a public forum. The 

Pinette plurality would have rejected the idea that “a

neutrally behaving government” can ever endorse “private 

religious expression,” id., at 764, even if a reasonable 

observer would perceive government endorsement, id., at 

768. But the Pinette plurality acknowledged that government favoritism of private religious speech is unconstitutional, as when a government “giv[es] sectarian religious

speech preferential access to a forum close to the seat of

government (or anywhere else for that matter).” Id., at 

766. And in this case, the Government is not acting neutrally: The transfer statute and the government actions 

preceding it have all favored the cross. 

Furthermore, even assuming (wrongly) that the cross

would be purely private speech after the transfer, and 

even assuming (quite implausibly) that the transfer statute is neutral with respect to the cross, it would still be 

appropriate for the District Court to apply the reasonable 

observer standard. The majority of the Pinette Court 

rejected the per se rule proposed by the plurality. Instead, 
Cite as: 559 U. S. ____ (2010) 17 

STEVENS, J., dissenting 

the relevant standard provides that the Establishment 

Clause is violated whenever “the State’s own actions . . . , 

and their relationship to the private speech at issue, actually convey a message of endorsement.” 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 some

situations, to take steps to avoid being perceived as supporting or endorsing a private religious message.” Ibid. It 

is particularly appropriate in this context—when the issue 

is whether the transfer cures an already identified Establishment Clause violation—for the District Court to consider whether the Government, by complying with §8121,

would have taken sufficient steps to avoid being perceived

as endorsing the cross.

As I explained at the outset of this section, the answer 

to that inquiry is surely no. The reasonable observer “who 

knows all of the pertinent facts and circumstances surrounding the symbol and its placement,” ante, at 17, would 

perceive that the Government has endorsed the cross: It

prohibited the use of federal funds to take down the cross,

designated the cross as a national memorial, and engaged 

in “herculean efforts to preserve the Latin cross” following 

the District Court’s initial injunction, Buono III, 364 

F. Supp. 2d, at 1182. Those efforts include a transfer 

statute designed to keep the cross in place. Changing the 

ownership status of the underlying land in the manner 

required by §8121 would not change the fact that the cross

conveys a message of government endorsement of religion. 

Purpose in Enacting the Transfer Statute 

Even setting aside that the effect of the post-transfer

cross would still be to convey a message of government 

endorsement of religion, the District Court was correct to

conclude that §8121 would not cure the Establishment 

Clause violation because the very purpose of the transfer 
18 SALAZAR v. BUONO 

STEVENS, J., dissenting 

was to preserve the display of the cross. That evident 

purpose maintains government 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 great detail. Suffice it to say that the record 

provides ample support. The land-transfer statute authorizes a conveyance to the particular recipient that has

expressed an intent to preserve the cross. See Brief for 

Veterans of Foreign Wars of the United States et al. as 

Amici Curiae 4 (transfer recipient “intends to maintain 

and preserve the Veterans Memorial”); id., at 7 (identifying Veterans Memorial as the “cross and plaque”). And it 

conveys the particular land that has already been designated “as a national memorial” commemorating the veterans of World War I, §8121(a), 117 Stat. 1100, subject to a 

reversionary clause requiring that a memorial “commemorating United States participation in World War I and 

honoring the American veterans of that war” be maintained, §8121(e). If it does not categorically require the

new owner of the property to display the existing memorial meeting that description (the cross), see §8137, 115 

Stat. 2278, the statute most certainly encourages this 

result. Indeed, the Government concedes that Congress

sought to “preserve a longstanding war memorial” at the

site, Brief for Petitioners 28 (emphasis added), and the 

only memorial that could be “preserved” at Sunrise Rock is

the cross itself. 

The plurality insists, however, that even assuming the

purpose of the land transfer was to preserve the display of

the cross, enjoining the transfer was not necessarily appropriate. It contends the District Court failed to give

adequate consideration to “the context in which the [landtransfer] statute was enacted and the reasons for its passage,” ante, at 11, and it directs the District Court’s attention to three factors: the message intended by the private 

citizens who first erected the cross, ibid.; the time the 
Cite as: 559 U. S. ____ (2010) 19 

STEVENS, J., dissenting 

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 accommodation,” ante, at 

13; see also ante, at 17. 

The first two of these factors are red herrings. The 

District Court, in its enforcement decision, had no occasion 

to consider anew either the private message intended by 

those who erected the cross or how long the cross had

stood atop Sunrise Rock. Neither of these factors constituted a novel or changed circumstance since the entry of 

the 2002 injunction. Whatever message those who initially erected the cross intended—and I think we have to 

presume it was a Christian one, at least in part, for the 

simple reason that those who erected the cross chose to

commemorate American veterans in an explicitly Christian manner—that historical fact did not change between

2002 and 2005. I grant that the amount of time the cross

had stood on Sunrise Rock did change, from 68 years to 71

years, but no one can seriously maintain that “the historical meaning that the cross had attained,” ante, at 12, was 

materially transformed in that 3-year increment.9 

—————— 

9 I also disagree with the plurality’s factual premise that “the cross 

and the cause it commemorated had become entwined in the public 

consciousness” in a secular manner, ante, at 11–12. Although some

members of the community knew that the cross had been originally

erected as a war memorial, there is no support in the record for the idea 

that members of the public “gathered regularly at Sunrise Rock to pay 

their respects,” ibid., to the fallen of World War I or any other veterans. 

The study conducted by a National Park Service historian indicates 

that a group of veterans gathered at the cross as early as 1935 for

Easter sunrise services. Memorandum from Mark Luellen to Superintendent, Mojave National Preserve (Jan. 31, 2000), Decl. of Peter J.

Eliasberg in Buono v. Norton, No. EDCV 01–216–RT (CD Cal., Mar. 13, 

2002), p. 20 (Exh. 7). But there is no evidence that gatherings were

ever held for Armistice Day or Veterans Day. The study further reveals 

that a local club organized social events for the community at the cross

from 1950 to 1975 and that after a local veteran passed away in 1984,

the “memory and associations of the white cross . . . as a war memorial” 
20 SALAZAR v. BUONO 

STEVENS, J., dissenting 

This brings us to the final factor identified by the plurality: Congress’ “policy of accommodation” for the cross.10 Of 

course, the District Court did consider Congress’ “policy”

in the sense that it considered the result Congress was

trying to achieve with respect to the cross, i.e., to keep it in 

place. See Buono III, 364 F. Supp. 2d, at 1182 (“[T]he 

proposed transfer of the subject property can only be

viewed as an attempt to keep the Latin cross atop Sunrise 

Rock without actually curing the continuing Establishment Clause violation”). But I understand the plurality to

be faulting the District Court for failing to inquire into a 

deeper level of motivation: If the purpose of the transfer 

was to keep the cross in place, what was the purpose of

keeping the cross in place? 

I do not see why it was incumbent upon the District

Court to examine this second-order purpose when determining whether the transfer violated the 2002 injunction.

As discussed in Part II, supra, the injunction barred the

Government from permitting the display of the cross, 

which fairly encompasses any act providing an opportunity for the cross’ display. It was entirely appropriate for

the District Court to characterize a transfer with the 

purpose of preserving the cross as an attempt to evade 

that injunction, and to find that the Government’s purpose 

to preserve the cross maintains government endorsement

of the cross. 

—————— 

faded but locals were “inspired . . . to reinstate the Easter sunrise 

services” at the cross. Ibid. 10Although the plurality uses the term “accommodation,” I do not

read its opinion to suggest that Congress’ policy vis-à-vis the cross has

anything to do with accommodating any individual’s religious practice. 

Cf. County of Allegheny, 492 U. S., at 601, n. 51 (“Nor can the display of

the crèche be justified as an ‘accommodation’ of religion. . . . To be sure, 

prohibiting the display . . . deprives Christians of the satisfaction of

seeing the government adopt their religious message as their own, but

this kind of government affiliation with particular religious messages is

precisely what the Establishment Clause precludes”). 
Cite as: 559 U. S. ____ (2010) 21 

STEVENS, J., dissenting 

The plurality would have the District Court revise its

entire analysis of whether the transfer would end government endorsement, in light of the plurality’s view of the

land-transfer statute’s putative second-order purpose. 

That analysis ignores the procedural posture of the case. 

If the question before the Court were whether §8121 itself 

violated the Establishment Clause, then this argument 

might have merit. But we are instead examining whether 

action taken with the purpose of preserving the display of 

the cross cures or continues government endorsement. In 

my view, that purpose continues the impermissible endorsement of—indeed, favoritism toward—the cross, 

regardless of why Congress chose to intervene as it did. 

In any event, Congress’ second-order purpose does little

for the plurality’s position. Without relying on any legislative history or findings—there are none—the plurality 

opines that Congress wanted to keep the cross in place in 

order to accommodate those who might view removal as

“conveying disrespect for those the cross was seen as 

honoring,” ante, at 12, 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,” ante, at 13. As I have already explained, the meaning of the cross (complex or 

otherwise) is no longer before us, and the plurality’s reliance on a “congressional statement of policy,” ibid., as 

negating any government endorsement of religion finds no

support in logic or precedent. The cross cannot take on a 

nonsectarian character by congressional (or judicial) fiat, 

and the plurality’s evaluation of Congress’ actions is divorced from the methodology prescribed by our doctrine.11 

—————— 

11 JUSTICE ALITO similarly affords great weight to Congress’ purported

interest in “avoiding the disturbing symbolism associated with the 

destruction of the historic monument.” Ante, at 5 (opinion concurring 

in part and concurring in judgment). But we surely all can agree that

once the government has violated the Establishment Clause, as has 
22 SALAZAR v. BUONO 

STEVENS, J., dissenting 

Our precedent provides that we evaluate purpose based

upon what the objective indicia of intent would reveal to a 

reasonable observer. See McCreary County v. American 

Civil Liberties Union of Ky., 545 U. S. 844, 862 (2005) 

(“The eyes that look to purpose belong to an objective

observer, one who takes account of the traditional external 

signs that show up in the text, legislative history, and 

implementation of the statute, or comparable official act” 

(internal quotation marks omitted)). “[R]easonable observers have reasonable memories, and our precedents 

sensibly forbid an observer ‘to turn a blind eye to the

context in which [the] policy arose.’” Id., at 866 (quoting 

Santa Fe Independent School Dist. v. Doe, 530 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 deference is owed because of “Congress’s prerogative

to balance opposing interests and its institutional competence to do so.” Ante, at 13. 

The proper remedy for an Establishment Clause violation is a legal judgment, which is not the sort of issue for 

which Congress “‘has both wisdom and experience . . . that 

—————— 

been adjudged in this case and is now beyond question, a plaintiff must

be afforded a complete remedy. That remedy may sometimes require 

removing a religious symbol, and regrettably some number of people

may perceive the remedy as evidence that the government “is bent on

eliminating from all public places and symbols any trace of our country’s religious heritage,” ante, at 4. But it does not follow that the 

government can decline to cure an Establishment Clause violation in

order to avoid offense. It may be the case that taking down the symbol

is not the only remedy. The proper remedy, like the determination of

the violation itself, is necessarily context specific, and even if it involves

moving the cross, it need not involve the “demolition” or “destruction” of

the cross, see ante, at 4, 5. Regardless, in this case the only question

before us is whether this particular transfer provided a complete

remedy. We have no way of knowing whether Congress’ motivation 

was to minimize offense, but in any event that interest does not ameliorate the remedial ineffectiveness of §8121. 
Cite as: 559 U. S. ____ (2010) 23 

STEVENS, J., dissenting 

is far superior to ours.’” Citizens United v. FEC, 558 U. S. 

___, ___ (2010) (STEVENS, J., dissenting) (slip op., at 71) 

(quoting Colorado Republican Federal Campaign Comm. 

v. FEC, 518 U. S. 604, 650 (1996) (STEVENS, J., dissenting)). Moreover, the inference that Congress has exercised 

its institutional competence—or even its considered judgment—is significantly weaker in a case such as this, when 

the legislative action was “buried in a defense appropriations bill,” Buono III, 364 F. Supp. 2d, at 1181, and, so far 

as the record shows, undertaken without any deliberation 

whatsoever. I am not dismissive of Congress, see ante, at 

7 (opinion of ALITO, J.), but §8121 presents no factual

findings, reasoning, or long history of “‘careful legislative 

adjustment,’” Citizens United, 558 U. S., at ___ (STEVENS, 

J., dissenting) (slip op., at 71) (quoting FEC v. Beaumont, 

539 U. S. 146, 162, n. 9 (2003)), to which I could possibly 

defer. Congress did not devote “years of careful study” to 

§8121, Citizens United, 558 U. S., at ___ (STEVENS, J., 

dissenting) (slip op., at 73), nor did it develop a record of 

any kind, much less an exhaustive one, see id., at ___ (slip 

op., at 20) (noting the legislative record for the Bipartisan 

Campaign Reform Act of 2002 spanned 100,000 pages). 

The concurrence’s attempt to draw an equivalence between a provision tucked silently 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.

Furthermore, in the Establishment Clause context, we 

do not accord any special deference to the legislature on 

account of its generic advantages as a policymaking body,

and the purpose test is not “satisfied so long as any secular purpose for the government action is apparent,” 

McCreary County, 545 U. S., at 865, n. 13 (emphasis 

added). Nor can the Government pursue a secular aim

through religious means. See Van Orden, 545 U. S., at 

715 (STEVENS, J., dissenting) (“Though the State of Texas 
24 SALAZAR v. BUONO 

STEVENS, J., dissenting 

may genuinely wish to combat juvenile delinquency, and 

may rightly want to honor the Eagles for their efforts, it

cannot effectuate these admirable purposes through an

explicitly religious medium”). It is odd that the plurality

ignores all of these well-settled principles in exalting this

particular legislative determination.

A reasonable observer, considering the nature of this

symbol, the timing and the substance of Congress’ efforts,

and the history of the Sunrise Rock site, could conclude 

that Congress chose to preserve the cross primarily because of its salience as a cross. Cf. McCreary County, 545 

U. S., at 873 (“If the observer had not thrown up his 

hands, he would probably suspect that the Counties were 

simply reaching for any way to keep a religious document 

on the walls . . .”). But no such conclusion is necessary to 

find for respondent.12 The religious meaning of the cross

was settled by the 2002 judgment; the only question before

us is whether the Government has sufficiently distanced

itself from the cross to end government endorsement of it. 

At the least, I stress again, a reasonable observer would 

conclude that the Government’s purpose in transferring 

the underlying land did not sufficiently distance the Government from the cross. Indeed, §8121 evidenced concern

for whether the cross would be displayed. The District 

Court was therefore correct to find that the transfer would 

—————— 

12 I have not “jump[ed] to the conclusion that Congress’ aim in enacting the land transfer law was to embrace the religious message of the

cross.” Ante, at 7 (opinion of ALITO, J.). I think a reasonable observer 

could come to that conclusion, but my point is that so long as we agree 

that Congress’ aim was to preserve the cross (which JUSTICE ALITO does 

not dispute), Congress’ reason for preserving the cross does not matter.

But if we were debating whether Congress had a religious purpose in

passing the transfer statute, I would contest the relevance of the vote 

count to that inquiry, see ante, at 6, and particularly so in this case.

One cannot infer much of anything about the land-transfer provision

from the fact that an appropriations bill passed by an overwhelming 

majority. 
Cite as: 559 U. S. ____ (2010) 25 

STEVENS, J., dissenting 

not end government endorsement of religion. 

IV 

In sum, I conclude that the transfer ordered by §8121

will not end the pre-existing government endorsement of 

the cross, and to the contrary may accentuate the problem 

in some respects. Because the transfer would perpetuate 

the Establishment Clause violation at issue in the 2002 

injunction, I further conclude that enjoining the transfer

was necessary to secure relief. Given the transfer statute’s fundamental inadequacy as a remedy, there was—

and is—no need for the District Court to consider “less 

drastic relief than complete invalidation of the . . . statute.” Ante, at 18. Allowing the transfer to go forward

would interfere with the District Court’s authority to 

enforce its judgment and deprive the District Court of the

ability to ensure a complete remedy. Nor could allowing 

the transfer to go forward be made a complete remedy

with add-on measures, such as signs or fences indicating 

the ownership of the land. Such measures would not 

completely end the government endorsement of this cross,

as the land would have been transferred in a manner 

favoring the cross and the cross would remain designated 

as a national memorial. 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 merits our highest respect. As 

far as I can tell, however, it is unprecedented in the Nation’s history to designate a bare, unadorned cross as the

national war memorial for a particular group of veterans.

Neither the Korean War Memorial, the Vietnam War 

Memorial, nor the World War II Memorial commemorates 

our veterans’ sacrifice in sectarian or predominantly religious ways. Each of these impressive structures pays 
26 SALAZAR v. BUONO 

STEVENS, J., dissenting 

equal respect to all members of the Armed Forces who 

perished in the service of our Country in those conflicts.

In this case, by contrast, a sectarian symbol is the memorial. And because Congress has established no other 

national monument to the veterans of the Great War, this 

solitary cross in the middle of the desert is the national 

World War I memorial. The sequence of legislative decisions made to designate and preserve a solitary Latin

cross at an isolated location in the desert as a memorial 

for those who fought and died in World War I not only

failed to cure the Establishment Clause violation but also, 

in my view, resulted in a dramatically inadequate and

inappropriate tribute. 

I believe that most judges would find it to be a clear 

Establishment Clause violation if Congress had simply 

directed that 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 cross remain in place, and it gave the cross the

imprimatur of Government. Transferring the land pursuant to §8121 would perpetuate rather than cure that 

unambiguous endorsement of a sectarian message.

The Mojave Desert is a remote location, far from the

seat of our Government. But the Government’s interest in 

honoring all those who have rendered heroic public service 

regardless of creed, as well as its constitutional responsibility to avoid endorsement of a particular religious view, 

should control wherever national memorials speak on 

behalf of our entire country.

I respectfully dissent. 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 08–472 

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS v. FRANK BUONO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 28, 2010] 

JUSTICE BREYER, dissenting. 

The District Court in this case entered a permanent

injunction forbidding the Government 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 covered the cross with a plywood

box so that it could not be seen. Congress then enacted a

statute directing the Secretary of the Interior to convey to

a private entity approximately one acre of land upon 

which the cross stood, presumably so that the cross could

be displayed uncovered. The plaintiff, returning to the 

District Court, asked that court to “‘hold that the transfer 

violates the . . . injunction.’” Buono v. Norton, 364 

F. Supp. 2d 1175, 1177 (CD Cal. 2005) (quoting plaintiff’s

motion). The court held that it did. Id., at 1182. And the 

question before us is whether the law permits the District

Court so to interpret its injunction. 

To answer this question we need not address any significant issue of Establishment Clause law. Because the 

Government has already lost the case, taken an appeal, 

and lost the appeal, we must take as a given the lower 

court’s resolution of the Establishment Clause question

before the land transfer. That is to say, as the plurality 

points out, ante, at 9, we must here assume that the original display of the cross violated the Constitution because 
2 SALAZAR v. BUONO 

BREYER, J., dissenting 

“the presence of the cross on federal land conveys a message” to a “reasonable observer” of governmental “endorsement of religion.” Buono v. Norton, 212 F. Supp. 2d 

1202, 1216–1217 (CD Cal. 2002). See Travelers Indemnity 

Co. v. Bailey, 557 U. S. ___, ___ (2009) (slip op., at 14)

(once orders become final on direct review, they are res

judicata to the parties). For the same reason, we must 

here assume that the plaintiff originally had standing to 

bring the lawsuit. Ante, at 7; see also ante, at 1 (SCALIA, 

J., concurring in judgment); Travelers, supra, at ___ (slip

op., at 14) (orders are no less preclusive when the collateral attack is jurisdictional). And, as the plurality also 

points out, the plaintiff consequently has standing now to 

seek enforcement of the injunction. Ante, at 8–9; see also 

Allen v. Wright, 468 U. S. 737, 763 (1984). 

Moreover, we are not faced with the question whether 

changed circumstances require modification of the injunction. The Government did not ask the District Court to 

modify it. In fact, the Government did not ask the District 

Court for any relief at all. Rather, it was the plaintiff who 

asked the District Court either (1) to “‘hold that the [land] 

transfer violates the current injunction,’” or (2) to “‘modify

that injunction to prohibit the land transfer because it

violates the Establishment Clause.’” 364 F. Supp. 2d, at

1177 (quoting plaintiff’s motion). The District Court did 

the former, i.e., it interpreted the injunction as prohibiting

the Government from transferring the land for purposes of 

displaying the cross. And having granted the plaintiff’s

request to enforce the injunction, it dismissed the plaintiff’s alternative request to modify the injunction as moot. 

Thus, as I said at the outset, the only question before us 

is whether the law permits the District Court to hold that

the land transfer (presumably along with the subsequent 

public display of the cross) falls within the scope of its

original injunctive order, an order that says the Government must not “permi[t] the display of the Latin cross in 
Cite as: 559 U. S. ____ (2010) 3 

BREYER, J., dissenting 

the area of Sunrise Rock in the Mojave National Preserve.” App. 39. In my view the law authorizes the District Court to do so. 

The legal principles that answer the question presented 

are found not in the Constitution but in cases that concern 

the law of injunctions. First, the law of injunctions grants 

a district court considerable leeway to interpret the meaning and application of its own injunctive order. Members 

of this Court have written that the “construction given to” 

an “injunction by the issuing judge . . . is entitled to great 

weight.” Madsen v. Women’s Health Center, Inc., 512 U. S. 

753, 795 (1994) (SCALIA, J., concurring in judgment in part 

and dissenting in part). And the Courts of Appeals have 

consistently held that district courts have considerable 

discretion in interpreting and applying their own injunctive decrees. See, e.g., JTH Tax, Inc. v. H & R Block Eastern Tax Servs., Inc., 359 F. 3d 699, 705 (CA4 2004); Alabama Nursing Home Assn v. Harris, 617 F. 2d 385, 388 

(CA5 1980). This principle is longstanding and well established, as reflected in a prominent treatise writer’s summary of the case law: “The court granting the injunction is 

necessarily invested with large discretion in enforcing

obedience to its mandate, and . . . courts of appellate

powers are exceedingly averse to interfering with the

exercise of such judgment and discretion.” 2 J. High, Law 

of Injunctions §1458, pp. 1467–1468 (4th ed. 1905). 

Second, a court should construe the scope of an injunction in light of its purpose and history, in other words,

“what the decree was really designed to accomplish.” 

Mayor of Vicksburg v. Henson, 231 U. S. 259, 273 (1913). 

Courts have long looked to “the objects for which the 

[injunctive] relief was granted, as well as the circumstances 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. Stephen L. Stetson Co., 128 F. 2d 981, 983 
4 SALAZAR v. BUONO 

BREYER, J., dissenting 

(CA2 1942). And they have long refused to “permit defendants to evade responsibility for violating an injunction,

by doing through subterfuge a thing which is not in terms

a violation, yet produces the same effect by accomplishing 

substantially that which they were enjoined from doing.” 

Stodder v. Rosen Talking Mach. Co., 247 Mass. 60, 68, 141 

N. E. 569, 571 (1923).

These two principles adequately support the District

Court’s interpretation and application of the injunctive

language at issue here. As an initial matter, the plain text

of the injunction is reasonably read to prohibit the transfer. 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 transfer thus “permits” the public 

“display” of the cross. Indeed, that is the statute’s 

objective.

Consideration of the injunction’s purpose points in the

same direction. The injunction rested upon the District

Court’s determination that the display of the cross “conveys a message of endorsement of religion” to “a reasonable observer” in violation of the Establishment Clause. 

212 F. Supp. 2d, at 1216–1217. (As I have said, for present purposes we must assume that this is so.) The purpose of the injunction is to prevent the conveyance of such

a message to the reasonable observer. 

With that purpose in mind, consider the following facts

that confronted the District Court when the plaintiff asked 

it to enforce the decree: 

• The Government had designated the “white cross

. . . as well as a limited amount of adjoining [land]” 

as a national memorial. Pub. L. 107–117, §8137(a), 

115 Stat. 2278–2279. 

• The new statute directed the transfer of the “property . . . designated . . . as a national memorial” to a

private entity with an interest in maintaining the 
Cite as: 559 U. S. ____ (2010) 5 

BREYER, J., dissenting 

cross in its current location, in exchange for a parcel of land located elsewhere in the Preserve owned 

by private individuals who have taken a similar interest in the cross. Pub. L. 108–87, §§8121(a) and 

(b), 117 Stat. 1100. 

• The transfer was made “subject to the condition 

that the recipient maintain the conveyed property

as a memorial,” and the property reverts to the 

United States if the Secretary determines that the 

recipient has failed to do so. §8121(e), id., at 1100. 

• After the transfer, the cross would sit on 1 acre of 

privately owned land in a 1.6 million acre national 

preserve, over 90% of which is federally owned. 

212 F. Supp. 2d, at 1205. 

• Congress had previously prevented the use of federal funds to remove the cross from its present location. Pub. L. 107–248, §8065(b), 116 Stat. 1551; 

Pub. L. 106–554, §133, 114 Stat. 2763A–230. 

The District Court considered the facts before it through

the lens of the injunction’s original purpose. See 364 

F. Supp. 2d, at 1180 (explaining that the “[G]overnment’s

continuing control over the Latin cross” and the involvement of private parties who “desir[e] its continued presence in the Preserve,” “demonstrat[e]” that the transfer

would not end “the [G]overnment’s apparent endorsement

of a particular religion”); id., at 1182 (considering the

historical context of the transfer statute); see also Buono 

v. Kempthorne, 527 F. 3d 758, 783 (CA9 2008) (“carving

out a tiny parcel of property in the midst of this vast Preserve . . . will do nothing to minimize the impermissible 

governmental endorsement” perceived by the reasonable 

observer). And it concluded that the land transfer would 

frustrate that purpose. See 364 F. Supp. 2d, at 1182 (the

transfer would “keep the Latin cross atop Sunrise Rock 

without actually curing the continuing Establishment 
6 SALAZAR v. BUONO 

BREYER, J., dissenting 

Clause violation”); see also 527 F. 3d, at 783 (finding that

“[n]othing in the present posture of the case alters . . . 

earlier conclusions” regarding what a reasonable observer 

would perceive). In my view, this is a reasonable 

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 observer from believing that 

the Government had endorsed the cross. Under the circumstances presented to the District Court, the transfer

would have resulted in such a display and might well have 

conveyed such a message. Consequently, the District 

Court’s decision that the land transfer violated the injunction as written and intended was not an abuse of discretion. And that is what the Ninth Circuit properly held on 

appeal. What the Establishment Clause implications of 

the changed circumstances may be is a matter not before 

us. Cf. Frew v. Hawkins, 540 U. S. 431, 442 (2004) (“If

the [enjoined defendant] establishes reason to modify the

decree, the court should make the necessary changes;

where it has not done so, however, the decree should be 

enforced according to its terms”). 

Because my conclusion rests primarily upon the law of

injunctions, because that law is fairly clear, and because

we cannot properly reach 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 we should not have granted the petition for certiorari. Having granted it, the Court should 

now dismiss the writ as improvidently granted. Since the 

Court has not done so, however, I believe that we should 

simply affirm the Ninth Circuit’s judgment. 

With respect, I dissent.