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Establishment Clause conflict case

Key differences between the circuits

Should the U.S Supreme Court review the Ninth Circuit’s decision, the court will have to resolve the following
questions that divide the Ninth and Seventh Circuits:

  • Is a land sale by the government presumptively effective in eliminating an Establishment Clause violation?
  • Does the inclusion of a covenant restricting the property’s use result in ongoing government control over the property?
  • Where the sale is prompted by litigation, is the litigation a legitimate secular motive for selling the property, or evidence that the sale is a sham?
  • Where the sale is to a party interested in preserving the monument, is the transfer a “logical” one, or is the transfer evidence of government intent to continue an Establishment Clause violation by selling it to a “straw purchaser”?

Case: Buono v. Kempthorne,
No. 05-55852, 2007 WL 2493512
9th Cir., Sept. 6, 2007).

“A Latin cross sits atop a prominent rock outcropping known as ‘Sunrise Rock’ in the Mojave National Preserve [in California].”

So begins a recent Ninth Circuit decision holding that the presence of the cross violates the Establishment Clause, even though Congress passed legislation transferring the land underneath the cross to the Veterans of Foreign Wars (VFW).

In doing so, the court created a split with the Seventh Circuit on the effect of a government’s sale of property containing religious memorials.

The court explicitly rejected the presumption employed in the Seventh Circuit, that, “absent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion.”

The decision also creates a constitutional conflict between the courts and the executive and legislative branches.

As a result, it is a strong candidate for review in the U.S. Supreme Court, bringing the analysis employed by the Seventh Circuit in reviewing such actions to come under review as well.


A cross was originally erected on the site in 1934 by members of the VFW as a memorial to veterans who died in World War I. The cross has been replaced by private parties several times, but signs dedicated to the veterans are no longer present. The cross serves as a gathering place for Easter religious services, and sits on a 1.6-million- acre preserve, 90 percent of which is federally owned.

In 2001, a district court held that the presence of the cross violates the Establishment Clause.

In response, Congress designated the cross a national memorial — the “White Cross World War I Memorial.” Congress also barred the use of federal funds to dismantle memorials commemorating United States participation in World War I.

In 2003, while the district court decision was on appeal in the Ninth Circuit, Congress conveyed the property underneath the cross (roughly one acre) to the VFW.

The Ninth Circuit later affirmed the holding of the district court that the presence of the cross violated the Establishment Clause.

The plaintiffs in the first action then moved the district court to prohibit the land exchange as an independent violation of the Establishment Clause.

The district court did so, calling the transfer of the property under the cross an evasion of the court’s orders.

The government appealed, arguing that the transfer was a bona fide attempt by Congress to comply with the injunction, but the Ninth Circuit affirmed.

Seventh Circuit Decision

The court acknowledged Seventh Circuit precedent adopting a presumption that a sale of property is an effective way for a public body to end its endorsement of religion. Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 491 (7th Cir. 2000).

However, the court declined to adopt the presumption, citing Establishment Clause jurisprudence recognizing the need to conduct a fact-specific inquiry in this area. Particularly, the court noted the recent Ten Commandments cases, holding one monument constitutional, and another unconstitutional.

Reviewing the district court’s fact-specific inquiry, the court agreed that three aspects supported a finding that the sale of the land was an evasion of the injunction, rather than a bona fide attempt to comply: (1) the government’s continuing oversight and rights in the site containing the cross after the proposed land exchange; (2) the method for effectuating the land exchange; and (3) the history of the government’s efforts to preserve the cross.


Related Article

Case Analysis


First, under the terms
of the exchange, the government retained ongoing supervisory, maintenance and oversight with respect to the cross and the property, as well as a reversionary interest if it were no longer to be maintained as a war memorial.

Second, the method of transfer was a grant to the VFW, without an open market bidding process for the land. The court agreed with the plaintiffs that the selection of the VFW, a beneficiary with an interest in preserving the cross, as grantee was evidence of the government’s intent to circumvent the injunction.

Third, the court detailed the history of the government’s efforts to preserve the cross: designating the cross a national memorial; appropriating funds to replicate the original cross and plaque; prohibiting the use of federal funds to remove World War I memorials; and finally, directing transfer of the property to the VFW, a private organization.

The court concluded, “We agree with the district court that the government engaged in ‘herculean efforts’ to preserve the cross atop Sunrise Rock. We also agree that ‘the 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 (cites omitted).’”

The court thus concluded that the transfer did not end the government’s improper endorsement of religion, opining, “carving out a tiny parcel of property in the midst of this vast Preserve — like a donut hole with the cross atop it — will do nothing to minimize the impermissible governmental endorsement. Nor does the proposed land exchange under § 8121 end the improper government action. Such a transfer cannot be validly executed without running afoul of the injunction.”

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David Ziemer can be reached by email.

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