Thursday, May 22, 2008

First Amendment: Latin Cross Violates Establishment Clause: Buono v. Kempthorn, 527 F.3d 758 (9th Cir. 2008)

Buono v. Kempthorne (Secretary of the Interior) 527 F.3d 758 (9th Cir. 2008) Cert Granted. Seventy five years ago, the Veterans of Foreign Wars erected atop Sunrise Rock in the Mojave National Preserve a memorial to veterans who died in World War I. The Memorial took the form of a cross, nearby stood a wooden sign stating, The Cross, Erected in Memory of the Dead of All Wars and Erected 1934 by Members of Veterans of Foreign Wars. The sign has since disappeared, and the cross has been replaced several times, most recently in 1998. Each incarnation of the memorial was created and installed by private citizens; there is no indication in the record that citizens ever received permission from the National Park Service; Buono v. Kempthorne; OScannlain, dissenting from denial of hearing en banc; 2008 WL 2939257 (9th Cir.) The facts of Buono are essentially undisputed, although their interpretation is not, as evidenced by litigation between the parties spanning six years. When the Ninth Circuit issued its original injunction in 2004 commanding removal of the cross, Congress replied by transferring the property to a private source, thereby escaping any Constitutional issue. According to the Ninth Circuit majority in Buono v. Kempthorne, decided in May, 2008, this Congressional act amounted to a sham transaction. The court held the Act violated the First Amendment Establishment Clause and affirmed its original injunction. The memorial has stood for seventy five years to honor those who died in the service of their country. These men and women who traveled abroad and left their friends and family to fight on foreign soil are entitled to a symbol of their commitment. No one has been compelled to join any religious group, no one terrorized, no harm to anyone. In a disservice to the dead and simultaneously interring American history, the Ninth Circuit deserves Congressional and national repudiation previously voiced when the court precluded the right of school children to include under God in the Pledge of Allegiance. The quotation above from the dissenting opinion in Buono (joined by four other judges) signals determination by a majority of the Ninth Circuit judges to eradicate religion from the public square no matter how tenuous the evidence and regardless of the public weal. As noted by the dissenting judges, the memorial has existed without a single complaint until 2002 when the ACLU elected to intervene on grounds the Latin Cross violated the Establishment Clause of the First Amendment. An unadorned cross in the middle of the desert hardly "establishes" any religion and its compulsory removal on gounds it "offends" somone is inconceivable. The First Amendment has undergone significant revision in the last quarter century as federal courts in general, and the Supreme Court in particular, have attempted to reconcile the religious origins of the United States in 1787 with the significant public interest in religion throughout American history. The original purpose of the Establishment Clause prohibited a federally supported national church experienced by colonists under Henry VIII and Elizabeth. English history is replete with evidence of tormenting, terrorizing and killing Catholics during the reign of these two monarchs, and our memory of the Puritans who sought escape from royal tyranny is implanted in the roots of American history. In Buono the Ninth Circuit majority again continued their attempt to extirpate any trace of religion in the public square (or in this case, the desert) by compelling removal of a poignant memorial of men and woman who died for their country. Somehow a simple cross memorializing the death of veterans is the equivalent of establishing a religion. The dissent is a scathing indictment of the majority decision who worry that an observer would believe-or at least suspect-[italics in original] that the cross rests on public land . . . Apparently in three quarters of a century no one worried about it. The Ninth Circuit not only ignores Congressional approval transferring the land to a private party but contradicts this Supreme Court quotation: There is ample room under the Establishment Clause for benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference; Corp. of the Presiding Bishop of the Church of Jesus Christ of LatterDay Saints v. Amos, 483 U.S., 327, 334 (1987). Undoubtedly the government will seek review in the Supreme Court and the Ninth Circuit will add another reversal to their voluminous record. The majority in Buono cited not a single Supreme Court case in their decision. This case is not legal analysis. This is policy making. *** On the same day the Supreme Court reversed the Ninth Circuit in U.S. v. Ressam, 2008 WL 2028505 (See, Blog, May 20, 2008), the Justices also reversed U.S. Rodriguez, 2008 WL 2028149. Although the Supreme Court decision in Rodriguez is a technical review of sentencing under the Armed Career Criminal Act, 28 U.S.C.A. 924 (e), the government argued the defendants 5 year sentence imposed by the district court should have been 10 years. The Ninth Circuit, opting for leniency, affirmed the 5 year sentence for the defendant previously convicted of three felonies and arrested in possession of a firearm.

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