Ninth Circuit Dissent Condemns Split from Seventh Circuit Cases Holding Sale of Property Ends Endorsement of Religion

Per Buono v. Kempthorne, 527 F.3d 758 (9th Cir. May 14, 2008) (O'Scannlain, J., dissenting):

Buono IV squarely contradicts two Seventh Circuit opinions holding that "[a]bsent 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) (upholding the sale of a portion of a municipal park on which stood a statue of Jesus with arms extended); see also Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 702-03 (7th Cir.2005) (upholding the sale of a portion of a municipal park with monument of Ten Commandments). The Seventh Circuit properly applied the principle that once publicly-owned land is transferred to a private party, government action ceases, and the Establishment Clause violation necessarily goes with it. Marshfield, 203 F.3d at 491 ("Because of the difference in the way we treat private speech and public speech, the determination of whom we should impute speech onto is critical.").

Nevertheless, the Buono IV opinion splits from the Seventh Circuit's rule and from binding Supreme Court precedent by creating an "unusual circumstances" test that extends well beyond the limited circumstances in which state action persists.

Buono IV also splits from the Seventh Circuit on a second, equally important issue. After holding that the government failed the Lynch endorsement test by inadequately distancing itself from the Sunrise Rock memorial, the opinion upholds a remedy compelling the VFW to sacrifice its private rights in Sunrise Rock to cure the government's constitutional violation. Buono IV, 502 F.3d at 1085-86; see also Buono II, 371 F.3d at 548-49 (discussing Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)).

. . .

By holding that a private citizen's rights may be infringed simply because his land was publicly owned in the past, or because it presently sits next to publicly-owned land, or because a hypothetical viewer might mistakenly confuse it with such land, the Buono IV opinion recklessly splits from the Seventh Circuit and announces a broad and unprecedented rule that should not be allowed to stand.


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