The decision is a good candidate for U.S. Supreme Court review. Besides creating a conflict with the Seventh Circuit, it also holds unconstitutional an act of Congress; the Seventh Circuit cases involved only actions by municipalities, not an equal branch of government.
Should certiorari be granted, there are many differences between the Ninth and Seventh Circuits analyses that the court would have to resolve.
First is the Seventh Circuits presumption that, absent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion. Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 491 (7th Cir. 2000); Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 700 (7th Cir. 2005).
In Marshfield, a city park contained a statue of Jesus and a plaque stating, Christ Guide Us On Our Way, donated by the Knights of Columbus in 1959. Marshfield, 203 F.3d at 489. In response to a lawsuit, the city sold .15 acres to a memorial fund, for fair market value, with a covenant restricting the parcels use. However, the statute was not visibly differentiated from the rest of the park. Id., at 490.
As noted, the Seventh Circuit adopted a presumption that the sale was an effective way to end its endorsement of religion. The Ninth Circuit declined to adopt such a presumption, citing Supreme Court precedent that establishment Clause cases are to be reviewed according to their unique circumstances.
Although this is the only conflict with Seventh Circuit precedent that the Ninth Circuit notes, this may not actually be as much of a conflict as it appears at first blush. The Seventh Circuit in Marshfield also cited the very same precedent regarding unique circumstances. However, it did so only while it was weighing the factors relevant to whether the government practice advances religion. Id., at 494. It still presumed the action was valid ab initio.
Other differences in the two courts approaches may have more practical significance than the presumption.
For example, the Seventh Circuit court found a restrictive covenant that governs the propertys use to be irrelevant to its analysis of whether the sale of the property endorsed religion. Id., at 492-493. In contrast, the Ninth Circuits opinion finds the restrictive covenant to be a highly relevant factor, concluding that it enables the government to effective exercise control over the property.
Ultimately, the Seventh Circuit held the sale in Marshfield ineffective to cure the Establishment Clause violation, but for very different reasons than the Ninth Circuit in the case at bar. The Seventh Circuit concluded that, without a fence or other demarcation between the statue and the rest of the city park, a reasonable observer would still regard the statue as an endorsement of religion by the city. Id., at 494-497.
The other Seventh Circuit case on the issue, Mercier, highlights even more differences between the approaches of the Seventh and Ninth Circuits.
Mercier involved a Ten Commandments monument in a La Crosse city park donated by the Eagles Club in 1965 to honor youth who helped fight a flood earlier that year. Ironically, pursuant to Van Orden v. Perry, 545 U.S. 677 (2005), the monument would almost certainly be held not to violate the Establishment Clause, but that was not the issue in Mercier; the court assumed the monument was an endorsement of religion by the city.
In response to litigation, the city sold the monument and a surrounding 440 square foot area to the Eagles Club, for fair market value, and a fence was placed around it.
Assuming the monument was unconstitutional if it remained on city property, the Seventh Circuit held that the sale was not an independent violation of the Establishment Clause, and that a reasonable person would no longer construe it as an endorsement of religion by the city.
First, the court found no impropriety in the fact that the sale was prompted by a lawsuit. Mercier, at 700. On the contrary, it found that preempting litigation is a rather obvious secular motive for the citys action. Id., at 705.
In contrast, the Ninth Circuit in the case at bar made much of the fact that the governments actions in selling the property were prompted by a lawsuit, and inferred improper motive on the governments part.
The Seventh Circuit also found nothing wrong with the fact that the city sold the property to the Eagles Club without public bidding, finding the Eagles a logical buyer, since they had donated and maintained it over the years. Id., at 703.
In contrast, the Ninth Circuit found it highly relevant that the government transferred the property to the VFW without bidding, and concluded that this bolstered the district court finding that the VFW was just a straw purchaser and the transfer was a sham.
The Seventh Circuit also emphasized that the monument was only in a public park, rather than a government complex. Id., at 703.
In contrast, the cross in the case at bar is in a vast national preserve. Nevertheless, the Ninth Circuit concluded that a reasonable person would know the property was federally owned and thus, consider the cross a government endorsement of religion.
Under the Seventh Circuits
analysis in Mercier, that would not be the case; if a city park is too removed from the seat of government to imply government endorsement, then a 1.6 million acre desert would certainly be too far removed, especially since 10 percent of it is not even federally owned.
Ultimately, the court in Mercier held that the Ten Commandments monument no longer violated the Establishment Clause after the transfer. Because of the fence around it, and a disclaimer stating the monument was not city-owned, the court concluded that it could not be any clearer to a reasonable person that the city was not endorsing religion. Id., at 704.
Thus, should the Supreme Court grant review in the case at bar, there will be a lot of differences in the analyses of the Seventh and Ninth Circuits that the court will have to resolve, not just the Seventh Circuits presumption of validity which the Ninth Circuit rejected.
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David Ziemer can be reached by email.