Display Of Cross To Honor Fallen Soldiers, On Federal Land To Be Transferred To A Private Owner, Does Not Violate The Establishment Clause Of The First Amendment

In Salazar v. Buono, (— S.Ct. —-, U.S., April 28, 2010), the United States Supreme Court considered whether a Congressional measure violated the Establishment Clause of the First Amendment to the United States Constitution by allowing a cross honoring fallen soldiers to continue to be displayed on what had been federal land. The Court ruled that because the purpose of the cross was not to place the government’s imprimatur on any religion, but rather to honor soldiers killed in World War I, and because the transfer would remove it from federal land, the transfer did not demonstrate to be unconstitutional.


In 1934, the Veterans of Foreign Wars (“VFW”) placed a cross on a rock outcropping in a scenic area of the Mojave Desert in California for the purposes of honoring American soldiers who had been killed in the First World War. The land eventually became part of the Mojave National Preserve, owned by the National Park Service (“NPS”).

Frank Buono, a retired NPS employee, frequently visited the site and took offense at seeing a religious symbol on federal land. He filed suit in federal district court claiming that the display of the cross violated the Establishment Clause and seeking an order that it be removed. The court granted Buono’s injunction. The United States Court of Appeals affirmed that judgment. Congress then passed a statute directing the NPS to transfer ownership of the land where the cross stood to VFW, and designate it a national memorial. In return, NPS was to receive a similar parcel of land from private owners.

Buono then returned to district court seeking to prevent the land transfer as an illicit means to avoid complying with the injunction. The district court granted this injunction as well, and the Court of Appeals again affirmed its ruling. The Department of Interior, and Interior Secretary Ken Salazar, appealed to the U.S. Supreme Court.


The Supreme Court held that the lower courts did not engage in the appropriate legal inquiry when they only considered whether the land transfer violated the rights Buono had previously secured. The land-transfer statute was a substantial change in circumstances bearing on the relief and the courts should have engaged in greater analysis of its effect.

The Court added, by approving the land transfer, Congress was not attempting to promote a Christian message. Rather, the cross was intended to honor fallen soldiers and had served that purpose for more than seven decades. The transfer, even though it allowed the cross to remain, was a reasonable way of recognizing the historical significance that the cross had attained.

The original injunction ordering the removal of the cross was based on the court’s belief that its existence on public land conveyed an impression of government endorsing religion. The lower court ruling in this case was based on a finding that the transfer was an illicit effort to avoid the prior injunction. However, the land-transfer statute significantly changed the circumstances by moving the area with the cross to private ownership, and the lower courts erred in not considering whether the land transfer had remedied the problem of a perceived government endorsement of religion, the court concluded.

The judgment of the court of appeals was reversed and the case was remanded for further proceedings consistent with the direction of the Supreme Court.


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