Commentary: Ninth Circuit rejects Establishment Clause conflict case.

Byline: David Ziemer

"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. History 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erected on the site in 1934 by members of the VFW as a memorial to veterans who died in World War I. The cross has been replaced by private parties several times, but signs dedicated to the veterans are no longer present.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...