Yesterday, a 3-judge panel of the U.S. 9th Circuit Court of Appeals issued an amended opinion in Buono v. Kempthorne, (9th Cir., May 14, 2008), eliminating one footnote, but otherwise reaffirming its holding finding Establishment Clause problems with Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW. (See prior posting.) The deleted footnote had indicated disagreement with a 7th Circuit case on land transfers undertaken to end Establishment Clause problems.
After the panel refused to grant a rehearing, the full court also refused to grant an en banc rehearing. However, in a long opinion, five judges dissented from the denial en banc review. The dissent argues that there is no evidence that the government will maintain or support the Sunrise Rock Cross after its transfer, and says that the VFW should not be required to sacrifice its private rights in the Sunrise Rock land in order to cure an Establishment Clause violation by the government. [Thanks to How Appealing for the lead.][Corrected].
