Latin
Cross Case Analysis
Sept.
17, 2007
The
decision is a good candidate for U.S. Supreme Court review. Besides creating a
conflict with the Seventh Circuit, it also holds unconstitutional an act of Congress;
the Seventh Circuit cases involved only actions by municipalities, not an equal
branch of government.
Should
certiorari be granted, there are many differences between the Ninth and Seventh
Circuits’ analyses that the court would have to resolve.
First
is the Seventh Circuit’s presumption that, “absent 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); Mercier v. Fraternal Order of Eagles, 395 F.3d
693, 700 (7th Cir. 2005).
In
Marshfield, a city park contained a statue of Jesus and a plaque stating, “Christ
Guide Us On Our Way,” donated by the Knights of Columbus in 1959. Marshfield,
203 F.3d at 489. In response to a lawsuit, the city sold .15 acres to a memorial
fund, for fair market value, with a covenant restricting the parcel’s use.
However, the statute was not visibly differentiated from the rest of the park.
Id., at 490.
As
noted, the Seventh Circuit adopted a presumption that the sale was an effective
way to end its endorsement of religion. The Ninth Circuit declined to adopt such
a presumption, citing Supreme Court precedent that establishment Clause cases
are to be reviewed according to their unique circumstances.
Although
this is the only conflict with Seventh Circuit precedent that the Ninth Circuit
notes, this may not actually be as much of a conflict as it appears at first blush.
The Seventh Circuit in Marshfield also cited the very same precedent regarding
unique circumstances. However, it did so only while it was weighing the factors
relevant to whether the government practice advances religion. Id., at 494. It
still presumed the action was valid ab initio.
Other
differences in the two courts’ approaches may have more practical significance
than the presumption.
For
example, the Seventh Circuit court found a restrictive covenant that governs the
property’s use to be irrelevant to its analysis of whether the sale of the
property endorsed religion. Id., at 492-493. In contrast, the Ninth Circuit’s
opinion finds the restrictive covenant to be a highly relevant factor, concluding
that it enables the government to effective exercise control over the property.
Ultimately,
the Seventh Circuit held the sale in Marshfield ineffective to cure the Establishment
Clause violation, but for very different reasons than the Ninth Circuit in the
case at bar. The Seventh Circuit concluded that, without a fence or other demarcation
between the statue and the rest of the city park, a reasonable observer would
still regard the statue as an endorsement of religion by the city. Id., at 494-497.
The
other Seventh Circuit case on the issue, Mercier, highlights even more differences
between the approaches of the Seventh and Ninth Circuits.
Mercier
involved a Ten Commandments monument in a La Crosse city park donated by the Eagles
Club in 1965 to honor youth who helped fight a flood earlier that year. Ironically,
pursuant to Van Orden v. Perry, 545 U.S. 677 (2005), the monument would almost
certainly be held not to violate the Establishment Clause, but that was not the
issue in Mercier; the court assumed the monument was an endorsement of religion
by the city.
In
response to litigation, the city sold the monument and a surrounding 440 square
foot area to the Eagles Club, for fair market value, and a fence was placed around
it.
Assuming
the monument was unconstitutional if it remained on city property, the Seventh
Circuit held that the sale was not an independent violation of the Establishment
Clause, and that a reasonable person would no longer construe it as an endorsement
of religion by the city.
First,
the court found no impropriety in the fact that the sale was prompted by a lawsuit.
Mercier, at 700. On the contrary, it found that preempting litigation is a “rather
obvious secular motive” for the city’s action. Id., at 705.
In
contrast, the Ninth Circuit in the case at bar made much of the fact that the
government’s actions in selling the property were prompted by a lawsuit,
and inferred improper motive on the government’s part.
The
Seventh Circuit also found nothing wrong with the fact that the city sold the
property to the Eagles Club without public bidding, finding the Eagles a logical
buyer, since they had donated and maintained it over the years. Id., at 703.
In
contrast, the Ninth Circuit found it highly relevant that the government transferred
the property to the VFW without bidding, and concluded that this bolstered the
district court finding that the VFW was just a “straw purchaser” and
the transfer was a “sham.”
The Seventh
Circuit also emphasized that the monument was only in a public park, rather than
a government complex. Id., at 703.
In
contrast, the cross in the case at bar is in a vast national preserve. Nevertheless,
the Ninth Circuit concluded that a reasonable person would know the property was
federally owned and thus, consider the cross a government endorsement of religion.
Under
the Seventh Circuit’s analysis in Mercier, that would not be the case; if
a city park is too removed from the seat of government to imply government endorsement,
then a 1.6 million acre desert would certainly be too far removed, especially
since 10 percent of it is not even federally owned.
Ultimately,
the court in Mercier held that the Ten Commandments monument no longer violated
the Establishment Clause after the transfer. Because of the fence around it, and
a disclaimer stating the monument was not city-owned, the court concluded that
“it could not be any clearer” to a reasonable person that the city was
not endorsing religion. Id., at 704.
Thus,
should the Supreme Court grant review in the case at bar, there will be a lot
of differences in the analyses of the Seventh and Ninth Circuits that the court
will have to resolve, not just the Seventh Circuit’s presumption of validity
which the Ninth Circuit rejected.
Click
here for Main Story.
David
Ziemer can be reached by email.
