Building a Fence of Separation: The Constitutional Validity of LandTransfers in Escaping fromEstablishment ClauseViolations

" [Rjeligious service is usually performed on Sundays at the Treasury office and at the Capitol. I went both forenoon and afternoon to the Treasury."'1. IntroductionA Latin cross stands in the Mojave National Preserve.2 This nondescript, five-foot white cross represents more than just an Easter gathering place, a memorial for World War I veterans, and an endorsement ofthe Christian faith by the federal government.3 This cross, in the middle ofa California desert, is representative ofa showdown that will undoubtedly occur across the country. Standing in the desert for over seventy years, this cross brings to the forefront a battle between those trying to protect pieces of Christian history and war memorials from destruction and those trying to rid the country of symbols they find offensive and repulsive even to look at from a distance.4 A circuit split developed in the fall of 2007 on whether the government can cure an Establishment Clause violation by transferring the monument and the land to a private individual or group, usually the group that erected the monument decades beforehand.5 This is a battle the Veterans of Foreign Wars (VFW) most likely never could have imagined when they erected the first cross atop Sunrise Rock. The importance of the battle, however, cannot be understated. It will not only determine the destiny of memorials and monuments depicting or taking the form of religious symbols, but it will also impact the future law of government reaction to private free speech.Following the adverse ruling in Buono v. Kempthorne,6 the government filed a brief for rehearing with the Ninth Circuit, arguing the three-judge panel committed five main errors: (1) neglecting to recognize that the Establishment Clause does not require hostility toward religion; (2) failing to acknowledge that legislative expressions of a secular purpose are entitled to deference; (3) rejecting the Seventh Circuit's conclusion that a land transfer is a cure; (4) failing to avoid constitutional infirmity in interpretation where possible to do so; and (5) refusing to admit that transferring the land to the logical purchaser is permissible and sensible.7 This Note explores each of these points in depth through the context of the land transfer situation of the Ten Commandments cases of 2005 and disputes that the cross in Buono is actually an Establishment Clause violation. Additionally, this Note examines the public function aspect addressed by the plaintiffs in these cases and referenced by each of the courts, and it addresses the speech aspects as well as the federal government split.In Part II, this Note begins by summarizing the current state of Establishment Clause jurisprudence. Providing background in the Establishment Clause, Part III then discusses the split among the federal branches of government. The Part first examines the Ninth Circuit case of the Sunrise Rock cross and how the circuit split developed. Next, the Note moves into the Seventh Circuit cases allowing transfer of land to cure an Establishment Clause violation and the rationale behind the holdings. Laying the foundation for the circuit split, Part IV of the Note explores the Ten Commandments cases of 2005 and argues that the Latin cross in the Mojave Preserve is not an Establishment Clause violation. From there, the Note predicts what path the Court will take if it analyzes the cross as an Establishment Clause violation. To do this, Part IV investigates similar cases the Supreme Court has examined over the course of the nation's history dealing with sham transactions, continuing involvement and reversionary interests, and addresses possible objections to whether true separation can ever be achieved. After this discussion, the Note delves into why the Supreme Court, if certiorari is granted, will ultimately conclude that the Seventh Circuit came to the correct result - by examining past Establishment Clause jurisprudence, looking at the nation's history and tradition, and exploring the consequences on speech of adopting the Ninth Circuit's rationale. …