9th Circuit: Transfer of Cross To VFW Did Not Cure Establishment Clause Violation

Congress' attempt to avoid Establishment Clause problems by transferring the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW has failed. In Buono v. Kempthorne, (9th Cir., Sept. 6, 2007), the U.S. 9th Circuit Court of Appeals first rejected the government's contention that the case was not ripe. Moving to the merits, the court focused on the government's ongoing oversight and maintenance of the property, the government's reversionary interest in the property, the unusual method of authorizing the land exchange with the VFW and the government's continuing efforts to keep the cross on the property. The court concluded that the land transfer would violate the district court's earlier injunction against display of the cross on government property. It concluded: "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." Reuters yesterday reported on the decision. (See prior related posting.) [Thanks to Inverse Condemnation blog for the lead.]