I just read the Ninth Circuit’s decision from yesterday in Buono v. Kempthorne, and it strikes me as having a good chance of going up to the Supreme Court. Buono is the latest decision in the Mojave Sunrise Rock cross case:
A Latin cross sits atop a prominent rock outcropping
known as “Sunrise Rock” in the Mojave National Preserve
(“Preserve”). Our court previously held that the presence of
the cross in the Preserve — which consists of more than 90
percent federally-owned land, including the land where the
cross is situated — violates the Establishment Clause of the
United States Constitution. We affirmed the district court’s judgment permanently
enjoining the government “from permitting the display
of the Latin cross in the area of Sunrise Rock in the
Mojave National Preserve.”During the pendency of the first appeal, Congress enacted
a statute directing that the land on which the cross is situated
be transferred to a private organization in exchange for a parcel
of privately-owned land located elsewhere in the Preserve.
That land exchange is already in progress and
would leave a little donut hole of land with a cross in the
midst of a vast federal preserve. The issue we address today
is whether the land exchange violates the district court’s permanent
injunction. We conclude that it does, and affirm the
district court’s order permanently enjoining the government
from effectuating the land exchange and ordering the government
to comply with the original injunction.
The government, you may recall, argues that the cross is a constitutionally permissible war memorial, rather than an attempt to endorse Christianity. The Ninth Circuit has rejected this view, and has consistently — including in this latest decision — concluded that the government action has endorsed Christianity, and thus violated the Establishment Clause.
Here’s my thinking on the chances of Supreme Court review:
(1) The Ninth Circuit expressly acknowledges that it disagrees with the Seventh Circuit on when the government’s sale of a religious monument eliminates any Establishment Clause problems. There’s a split here not only with Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000), which generally adopted a presumption that “a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion” yet still found an Establishment Clause violation, but also with Mercier v. Fraternal Order of Eagles, 395 F.3d 693 (7th Cir. 2005), which applied the presumption and found no Establishment Clause violation.
Buono could be factually distinguished from the other cases, especially since Establishment Clause jurisprudence has gotten so fact-dependent. But the reasoning of the Ninth Circuit’s and Seventh Circuit’s approach is sufficiently inconsistent that I think a Court would see a serious circuit split here, and the presence of such a split is generally a factor in favor of Supreme Court review.
(2) The Ninth Circuit expressly holds unconstitutional an Act of Congress, not just an executive branch action. Such a split among federal branches — the legislature and the executive going way and a circuit court going the other — is also a factor in favor of Supreme Court review.
(3) I anticipate that the Solicitor General’s office will expressly ask for certiorari, both given the current Administration’s view on such matters and given the likelihood that defending the cross will prove to be popular with most voters. And the SG’s request for review is a factor in favor of Supreme Court as well.
(4) Finally, my sense is that the replacement of Justice O’Connor with Justice Alito may provide five votes for rejecting the endorsement test altogether. And while this case can be decided even without rejecting the endorsement test, I suspect that several Justices will be willing to use the case as a vehicle for rejecting that test. If there are four Justices who want to move the law in a particular direction, and think that there will be five votes for such a result, then it seems fairly likely that those four will vote to hear the case. (Recall that it takes only four votes for the Supreme Court to agree to hear a case.)
In any case, that’s my tentative thinking on the subject. What do others think?