Why Can’t Property Transfers Resolve an Establishment clause Problem? The Divide Between the Ninth and Seventh Circuits After Buono v. Kempthorne
Victoria R. Calhoon, 42 Ind. L. Rev. 195 (2009)
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This Note analyzes the reasoning applied by the Ninth Circuit in Buono IV and contrasts it with the Seventh Circuit’s treatment of similar legal issues in Freedom from Religion Foundation, Inc. v. City of Marshfield (Marshfield) and Mercier. Part I of this Note provides an overview of Establishment Clause cases from the Supreme Court, Ninth Circuit, and Seventh Circuit. These cases, especially Marshfield and Mercier, form the backdrop for evaluating Buono IV which are explained in greater detail. Part II describes the legislative and procedural background of Buono IV and the three previous Buono cases. Part III outlines the district court and the Ninth Circuit’s treatment of the property transfer issue in Buono v. Norton (Buono III) and Buono IV and applies various legal tests to the Buono cases to determine that the proper outcome was not reached.
