9th Circuit: Congress can’t cure Establishment violation by selling land under a religious symbol
How Appealing reports: “Over the dissent of five judges, the Ninth Circuit denies rehearing en banc of decision holding that Congress cannot cure a government agency’s Establishment Clause violation by ordering sale of the land upon which a religious symbol is situated.”
The opinion is here: Buono v. Kempthorne, No. 05-55852 (9th Cir. May 14, 2008)(denying rehearing en banc).
The dissenting opinion begins:
O’SCANNLAIN, Circuit Judge, dissenting from the denial of rehearing en banc, joined by TALLMAN, BYBEE, CALLAHAN, and BEA, Circuit Judges:
The opinion in this case announces the rule that Congress cannot cure a government agency’s Establishment Clause violation by ordering sale of the land upon which a religious symbol previously was situated. Because such a novel rule contravenes governing Supreme Court precedent, creates a split with the Seventh Circuit on multiple issues, and invites courts to encroach upon private citizens’ rights under both the speech and religion clauses of the First Amendment, I respectfully dissent from our order rejecting rehearing en banc.
Seventy-four years ago, the Veterans of Foreign Wars (“VFW”) erected atop Sunrise Rock in the Mojave National Preserve1 a memorial to veterans who died in World War I. Buono v. Kempthorne, 502 F.3d 1069, 1072 (9th Cir. 2007) (“Buono IV”). The memorial took the form of a cross, by which stood a wooden sign stating, “The Cross, Erected in Memory of the Dead of All Wars,” and “Erected 1934 by
Members of Veterans of Fore[ig]n Wars, Death Valley post 2884.” Id. The sign has since disappeared, and the cross has been replaced several times, most recently in 1998. Id. Each incarnation of the memorial was created and installed by private citizens; there is no indication in the record that the citizens ever received permission from the National Park Service (“NPS”) to construct the memorial.
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Is it not time to stop the courts and congress eroding our 1st amendment rights