ACLU Attack on Veteran's memorial – Watch Video

        I’ll give you the benefit of my legal research on this subject, which is near and dear to my heart as it should be to all Americans and especially is to those who have served in battle to preserve our freedoms.

        The ACLU represented Mr. Buono who sued certain government officials including Gale Norton who was the secretary of the interior, to remove a cross from government land that was erected by veterans and maintained by the government for many years as a designated war memorial honoring military service personnel.

        The Ninth circuit held in favor of Mr. Buono, a Catholic, who said he was offended by the Christian Cross on government land in the middle of the desert.  In an obvious attempt to preserve the memorial, the Bush Administration passed legislation that is being challenged by the ACLU.

        In 2004 the Congress passed legislation signed by President Bush which transferred the land upon which the cross sits to a local Veterans group in exchange for privately owned land elsewhere. The Ninth Circuit did not moot the appeal and held that the cross violated the establishment clause, and left the question open as to “whether a transfer completed under Section 8121 would pass constitutional muster”.

        The Ninth Circuit took up the question in the matter of Buono v. Kempthorne, 527 F.3d 758 (2008). The court wrote:

In January 2002, while this matter was pending in district court, Congress passed a defense appropriations bill, which included a section designating the Sunrise Rock cross as a "national memorial." See Pub.L. No. 107-117 § 8137, 115 Stat. 2278-79 (2002), codified at 16 U.S.C. § 410aaa-56 (note) (hereafter "§ 8137"). That section provides:

        As background for the Kempthorne case, in October of 2002 Congress passed a defense appropriations bill that included a provision barring the use of federal funds "to dismantle national memorials commemorating United States participation in World War I." Pub. L. No. 107-248 § 8065(b), 116 Stat.1551 (2002) (hereafter "§ 8065").

        In September 2003, Congress enacted another defense appropriations bill that included a land exchange agreement regarding the Sunrise Rock cross.

        The sum of the acts gave the Secretary of the Interior management authority to maintain the cross. [Mistake #1]. The government retained an easement over the land to maintain the cross [Mistake #2]. The government retained a reversionary right, which means the proper might in the future return to government ownership. [Mistake #3].

        The Ninth circuit ordered the cross covered and it was not pleased when Congress passed three bills to avoid compliance with the Court’s order. “the government engaged in "herculean efforts" to preserve the cross atop Sunrise Rock. Buono III, 364 F. Supp. 2d at 1182. "The proposed transfer of the subject property can only be viewed as an attempt to keep the Latin Cross atop Sunrise Rock without actually curing the continuing Establishment Clause violation." Kempthorne pg. 45

        The Ninth circuit in Kemthorne was also not pleased that the government had for a long time maintained the cross and apparently prohibited other religious symbols to be erected on the site.

        The final word of the U.S. Court of Appeals of the Ninth Circuit was articulated in clear and unambiguous terms.

carving out a tiny parcel of property in the midst of this vast Preserve--like a donut hole with the cross atop it--will do nothing to minimize the impermissible governmental endorsement. Nor does the proposed land exchange under § 8121 end the improper government action. Such a transfer cannot be validly executed without running afoul of the injunction.

        The U.S. Supreme Court in the matter of Van Orden v. Perry, 545 U.S. 677 (2005) commenting on Buono v. Norton, 212 F. Supp. 2d 1202, 1204-1205, 1215-1217 (CD Cal. 2002) The Chief Justice, joined by Justice Scalia, Justice Kennedy, and Justice Thomas wrote: “If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge. Van Orden pg. 695

        The issue in Kempthorne will reach the U.S. Supreme Court in the matter of Salazar v. Buono, 129 S. Ct. 1313 (2009). Salazars is the family who has been maintaining the cross for many years and to whom the government was to make the land swap. In February of this year Chief Justice  Roberts,  and Justices Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer, Alito, granted a petition for certiorari. So stay tuned for their decision. Anyone want to venture a guess? By the time this case is argued Justice Sotomayor will be involved in the decision.

        Elections do have consequences!