holding that it would violate the court's prior injunction prohibiting the display of a cross on sunrise rock in the mojave preserve that order was both premature and incorrect it was premature because the court should given the park service a chance to implement this law consistent with its prior injunction and it should have waited to rule on the constitutionality of section eighty one twenty one until it had a complete set of facts to judge and it was incorrect for represents congress's good faith effort to navigate that narrow path between the competing demands of the first amendment let's talk about your claim when we know now we know  went back to don't we have well for example your honor we don't know what kind of assign the park service might erect at the site the district court dismissed the potential impact of a sign in a footnote and then in general courts wait and don't decide constitutional questions in advance of their necessity i submit that's exactly what the district court to hear but what if the issue is there's a cross there which the federal government has by one way or another you demanded it doesn't matter now it's in private hands if in fact what the government purpose was to violate the establishment i think you're getting to part of what the district court did hold here was got that the congress had an illegitimate purpose and so i think i think it's a appropriate to turn to that part of the analysis at this point which really goes to the merits it's pretty unusual for a court to strike down a legislative act based on illegitimate purposes yes as as the supreme court justice souter writing for the court in the mccreery case emphasized that when analyzing the per this of the congress of the of any legislative an the court looks to the openly available data the readily discoverable fact and should only invalidate the enactment when that readily discoverable fact that is the face of the document the legislative history when it supports a common sense conclusion that the religious most objective permeated the government's action here i submit if you look at the face of section eighty one twenty one there is no religious reference whatsoever in section eighty one twenty one it merely orders an exchange of real property and it reflects congress's intention as the whole history of congress is an action and here does of a legitimate purpose to preserve a war memorial which i'd also note this court case recognized that the goal of preserving a memorial service what the court called an undeniably secular purpose so i think the district court's order here on purpose  importantly section eighty one twenty one does not it doesn't mention the cross at all and it doesn't require that across remain standing it requires the plain language were choir's that the you're doing but since you use this nice language we can pretend that we don't know oh i don't i don't i think again going back to justice souter's opinion for the court of mccreary he cautioned the court against what he referred to as judicial psychoanalysis i think the court is bound by the plain language of section eighty one twenty one and with and it's i think that even your first statement of what they want to do is preserve the cross i mean if they if they don't want to preserve the press what's the point of having a way in transfer value to be listed on the historical register which is has its own statutory requirements it certainly has you know obvious value to the v f w and i think the point of the seventh circuit and the tenth circuit violation congress can effectively rid the government of this liability without dishonoring the v f w let's say it did that it said and i sell this to you upervisory or oversight responsibility before we version before the reversion there is a reference back to an earlier congressional enactment that required  original plaque first of all that provision is easily sever a ball from the rest of the act so if that's the only problem that we can separate but more importantly that can easily be accomplished before the land exchange it doesn't give service any sort of continuing supervisory responsibility again the plain language of section eighty one twenty one orders the secretary of the interior to transfer all of the government's rights title and interest in the property and there is no eas reversionary interest if it's not used as a warm up as a war memorial a war memorial it does not require that the cross remain standing the district court's error here was in not reading the statute to avoid constitutional infirmity as it could have and in not presuming as it should have that some future secretary of the interior if the v f w changes the form of this memorial would in his discretion take the to the v f w because you maintain the cross which we can do i don't think that that would be a problem either and in fact if you turn idea in the free speech context it was clear in those cases that the that the they don't or who was getting the property back wanted to keep up the statue of jesus and wanted to keep up the ten commandments monument and that was the whole reason giving it back to them was to allow them to keep the monument in place and what the seventh circuit in the tenth circuit held was that when you transfer the title you transfer with the title the religious aspect of the message and i don't think there's any reason that rule shouldn't apply here the district court pointed to a few things that pointed to the reversionary clause which we touched on there were similar reversionary  issue in both the seventh circuit and the tenth circuit cases and they did not undermine the application of that rule in those cases these sorts of reversionary clauses are actually quite typical when the park service disposes of surplus property there's also pointed to the fact that the property will be conveyed to the v f w which is a veterans organization that in effect donated this memorial to the united states and back in one nine hundred thirty four physical barrier the park service might erect to make it clear that this monument is privately owned and it's significantly justice prior in the van orden opinion which the district court didn't wait for the ten commandments from the religious aspect of the message here too even if all the park service puts up as a replica of the original plaque it says that it's a directed by the v f w that alone would already begin to distance the government from the religious aspect of the message conveyed by this cross only there's nothing that bothers me is here's the war one more e mail at this point under the legislation is that the cross the act meant back and i think it was two thousand and two that designated this memorial a national memorial referred to it as a cross at the time the only other way congress had to refer to the property ask another question maybe this will help clarify it the cross seems to be the war memorial yes but then and then there's legislation that says you can't use any federal money to take down the crime correct and then there's a further so we let's say we give piece of property on which the cross is to the of the of the view but there's a further statute that says something to the effect of but you can't take down any more memorial because that would be a legal so isn't the effect of that that's what you're referring to and that does not first of all it wouldn't preclude the v f w from from taking the cross down and replacing it with a different kind of memorial it doesn't prohibit the v f w from replacing the war memorial and second of all it requires interstate commerce the v f w is in california the process in california it would be hard to to prosecute anybody for that and it's also just entirely speculative to question whether the u s attorney might bring charges against the v f w for replacing the cross at some hypothetical point in the future which gets us back to where we started with the rightness inquiry that the district court here should have waited for a concrete set of and of course the center higher cases all the issues on appeal are legal questions so it's really good to know about standard of review on these legal questions especially because we don't really have any facts to be at this point we have a congressional enactment on its face and all we really have essentially it's a facial challenge to the statute because all we have is the face of the act we don't know how the land exchange could be implemented at this point we don't know can be seen from a huge distance in this national preserve that that would be a separate loss that it's actually just to not to nit pick but it's actually a very small cross it's actually not too much bigger than i am and it can be invalidating an act of congress i think that the court has said time and again we don't judge acts of congress under the constitution prematurely and i think that's what the district court did here and effectively held that no matter how you do it it's necessarily going to violate the establishment clause i think the court should have waited for the facts before doing that and to the extent that it held this will necessarily violate the establishment clause and that's just wrong a sale of property is framework and then if i may i would like judge pleasure to address some of your questions both about purpose and rightness and obviously any other questions the court may have the seven circuits basic syllogism is that generally we assume that the religious expression on private property will be attributed to the private property owner and therefore generally if there has been an establishment clause lyall ation because there's been a religious intrinsically religious statue and in this case you couldn't seventh circuit said one of those was when the government in effect maintains a connection if they were selling it to this private owner but they nonetheless maintain a connection and the example they give is the government continues to pay for the electricity bills on the land where the government  continues to maintain when this case what greater continuing association could there be with this land and the religious symbol on it than the government's having designated this cross a national memorial it is raised this cross into  same kind of honor it is given to the mount rushmore statue to the nine eleven flight ninety three memorial in the cornfield in pennsylvania and to the vietnam memorial on the capitol it is made it one of only approximately forty five national memorial in the whole country so for the government to say we're just associating ourself from the speech by giving it to a private party well in the same time we call it a national memorial there could be no greater way that the government can maintain its honor but again i think that it still gets it you have the government to gauge in a rube goldberg act you have to sign a disclaimer and yet in the federal statutes it says this is a national memorial i think it would be impossible for the government to say that a disclaimer in  circumstance can satisfy its operation its requirements to separate itself when an act of congress is designated a line of fire or the fact that you call either national memorial any different than calling something designated for the years and years and a plaque there that said that it's a national memorial and the government only designated a national memorial well after this after this case started so it's not as if the government had previously given its input to improvement sure symbol when there was no overlying overhanging litigation but even in the situation of the designation as a national historic monument i think what the government would be identifying itself to saying we recognize that this has particular historic value national war memorial sinks that there's no way that you can keep that cross on that property under any circumstances but position yet the government could simply be designated as a national memorial now that's not my question is long as it's called a woman while your view is nothing could fix it i think that's correct although we do have another we do have as a pretty argument out on the precipice if you will if you have any other arguments  to rush more is it continued indorsement nonetheless there is a second reason why that there's an unusual circumstance here is that unlike in the marshfield and mercia cases the government has engaged in blatant favoritism by at one level letting private owners come onto this property and erect a cross while at the same time when somebody else came and said i'd like to interact and memorial of another religion the government said absolutely not and in fact if you do will arrest you that favoritism of one service say at the same time they turned down the buddhist i think it was memorial that they were going to take the cross and they did and then the federal government said you can't congress that you can't spend any money to take it down so the mere fact that the national doing in context of the whole history of this case the blatant favoritism for a christian religious symbol over other religious symbols the government's history of numerous times trying to do everything it could to preserve the cross  have to preserve this is the word moral they in effect said you have to keep this cross here folks not very well that brings that goes to the rightness question judge white and again as in santa fe the question of whether there will ultimately be a student prayer which was the issue that the government raised to saying this case wasn't right what the court said was the challenge here is to the history and the present policy that the school district has put in place and that even though there may be some adventure reality that in the future the crossed will come down or that the box will come off isn't the issue when we can see that the purpose and a fact of the statute itself in conjunction with  history in this case is a violation of the establishment clause the other issue is i think with respect to rightness your honour's i've been thinking a lot about this from a from a federal courts perspective rightness i have never seen a r not analyzed as a question of should this case get into court and i believe the proper inquiry here if at all with respect to this is not rightness but moving us right now and standing deal with is there a case or controversy there is clearly a case of controversy here that's the law of the case from the from this court when you found that mr brown had standing that there was a case or controversy now we're six years into it and there's a final judgment in this case and the question is was the district court correct in those circumstances the burden on the government is really on the government to say you shouldn't deal with this because it's absolutely and completely eradicated and that's the standard set forth and by this court in the norman bloodstock case but there's no question that the government concedes that there might congress can take the step to undesignated if it does it changes the announced this is a case very dramatically so it's not a question of sunk permanently in forever it's a question of whether the congress wants to choose to say we remain associated with this we treat this in the way the same way we treat the vietnam veterans memorial or if they choose not to so it's not permanently sung but your honor is correct that our position is and this will lead me into the questions that judge lester was asking about purpose that because the purpose where a christian cross so my question to you is what could congress do if it wanted to give a private party the option to maintain that or change it what could congress do that in your view would be constitutional well without trying to repeat myself but i won't be clear what my position is one is congress would need to designate and that i think is the most important fact here it would go a very long way to fixing the problem and i believe this court can decide this case on that issue alone completely squarely with the marshfield the mercy of cases however we did argue in their brief that in this case unlike in marshfield the mercy when the government's violation is not simply aligning itself with a particular religious object is that in this case the government's violation is much further and it's what happened in the a j c case the government said to one religious group on we don't want your symbol here but they repeatedly said we're fine and happy and in fact memorialize the fact that the christian cross is here under the basic principles of equity the real remedy has to solve the particular constitutional problem in marshfield there was no evidence that the government ever said to a jewish group we don't want your memorial here we only want the ten commandments so in these circumstances the government i believe does have an obligation to open the sale up at least to groups without saying it's a far different case i think it probably is constitutional because the government would in large part have maybe completely disassociated itself from its from its explicit favoritism but i guess what i would say judge why that's a hard question and again it's not the one presented i think in those circumstances it might very well be that the government be correct that that issue you would need to wait and you would need to wait to see what does the what  fence look like what is the sign that goes up look like and then you would analyze it under that that particular set of facts and circumstances judge fletcher you asked earlier about the government raise this idea about the gift and they've made a big deal that you give it back to the giver but that's not what's happening here first of all it's a little hard to say that someone coming on to private property and leaving a statue there is necessarily a gift to me we certainly know with that knowledge minute that that second of all the gift was the cross it was an acre of property a national park land so that analogy fails because when someone comes and gives you two hundred fifty dollars you know in your office you don't give back the two hundred fifty dollars and selling your office and that's basically what the government is doing here so they can rest under the idea  land for purposes of a war memorial and then it's not used for that then the government ought to get the land back well what's wrong with that i don't have any well i think in one needs to look at this case under the total of facts and circumstances if what had happened was there was a cross put up and no one else would ever come to the governments then we'd like to put something else up litigation was filed the government said this could be a problem we're just going to end this whole issue and we're going to sell it to the v f w that's an entirely different set of facts and circumstances from this case where the government has so many different ways made it very clear that it's all to make goal is to ensure that the cross remains up how do we know that because they twice said you can't spend federal funds to take it down putting blinders on to accept what the government is saying which is of course to the f w could take this down we don't know what they're going to do of course we know what they're going to do first of all a veterans organization is not going to tear down a national memorial it is a laughable concept second of all the sandoz has never would have put this transfer together with the federal government if they didn't know that the v f w was going to keep the cross up of course that you have to be going to keep the cross and they put it there in the first place and that goes  right to the property wouldn't it matters for the same reason that the policy that was struck down in the santa fe case did not absolutely ensure that a prayer would be given but the court said it's obvious that the government is doing everything it can to set this up so what prayer will be given the fact that the sandoz this or the mention of this transfer when they say they've maintained the cross and they say they'd rather go to jail than see it come down to facts the analysis of the government's purpose here and also the perception that we have some would have about is this a good faith effort for the government really to say we're disassociating ourselves from this where is the government basically saying we desperately want to keep a cross up and we want to keep it up exactly where it's been and  n exactly in the same area where we told someone else they couldn't put up another memorial but we will through a statue right in such a way that says just preserve it as a war memorial instead of a cross because we're not that dumb is very quickly if i could go to judge fletcher purpose is green from the history of the case and the nature of the religious act in this case that it could not be a more explicitly sectarian religious symbol and there is a long history of the government doing everything it could to keep this cross on government property if you look at macquarie county the governor the court does not say in that case you just need to look at the face of the statute or the legislative history but to the extent that that's correct the legislative history in fact of this case is repeated efforts by the government to associate itself with this cross and to rule and to refuse to allow it to come down and therefore the only clear way we can view the purpose here is that it's attempting simply to make sure that the cross remains standing exactly where it stood for years steps that won't violate that injunction well if the if that's been the way the government proceeded in the first place from the time and a judgment came down and said ok let's sell it that's not what the government did it doesn't have a national memorial and so you can't words if if the challengers as to there's not a challenge to the statute that says you can't spend money to take it down correct that's correct  hasn't been challenged is now used to undermined the government's intent of trying to get rid of this thing well i would say your honor i covered it is not being displayed the in john the injunction has not been violated and it will not be violated until this until the land exchange is completed and it's no longer federal property so the district court did go beyond the scope of it effectively make sunrise rock an open forum and open it to other religious symbols that would certainly be a permissible means of curing constitutional violation here but neither the seventh circuit nor the tenth circuit held that that was required there is to remove the mount soledad crossed one of the primary reasons he said that that cross needed to remain standing was because it had been designated a national memorial that was one of the keys to his to his opinion there was was because shall have no other gods before me if that can have a secular purpose surely across can too and that's why the fifth circuit in the briggs case held that having a cross on the state flag serves a legitimate secular purpose when you go to arlington cemetery and you see the sea of crosses you don't think wow that's a lot of questions you know that the cross signifies the war dead it memorializes the dead and that's the purpose of this cross and that's why  secular purpose the ten commandments conserve secular purpose legislative prayer can serve a secular purpose across is of course the preeminent symbol of christianity no doubt but it also can serve a secular purpose and that's why in the prior appeal of this case the court did not question the government's purpose at heart the district court held that this was congress's way of perpetuating a constitutional violation it wasn't it was congress's good faith effort to end  constitutional violation the district court went well beyond its prior injunction and the order here should be vacated unless the court has further questions thank you very much for your time thank you i think both counsel for your very very good reason for your arguments