Buono v. Kempthorne

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In Buono v. Kempthorne, 2007 U.S. App. LEXIS 21281 (9th Cir. Sept. 6, 2007), the ACLU persuaded the Ninth Circuit to forbid Congress from saving a cross.

The history of this case is as follows. The ACLU Foundation of Southern California provided the legal counsel for one Frank Buono, who objected to a cross in the remote Mojave National Preserve, otherwise known as the Mojave Desert. A wooden cross was originally erected there in 1934 by the Veterans of Foreign Wars (“VFW”), in honor of veterans who died in World War I. It has been replaced several times since, most recently in 1998 by a local resident named Henry Sandoz, who bolted the cross into Sunrise Rock. It is difficult to remove.

A court ordered the National Park Service (NPS) to remove the cross in 2002 based on its view that the cross violates the Establishment Clause. Buono v. Norton, 212 F. Supp. 2d 1202 (C.D. Cal. 2002) (“Buono I”). In response Congress passed a law barring the use of federal funds “to dismantle national memorials commemorating United States participation in World War I.” The NPS, lacking funding for removal of this cross, covered it with a plywood box as the litigation continued.

The case went up on appeal to the Ninth Circuit. Congress, perhaps not liking what it heard from the Ninth Circuit in oral argument of the case, passed a law one month afterwards ordering the transfer of the tiny spot on which the cross rested to the Veterans Home of California — Barstow, Veterans of Foreign Wars Post #385E. In return, five acres of private property were being conveyed to the United States by a charitable couple. If the VFW Post ever stopped displaying the cross, then the spot on which it rests would revert back to the United States.

A new lawsuit was then brought by the ACLU to block this transfer to the VFW. The ACLU often collects hundreds of thousands of dollars in attorneys’ fees – or even millions of dollars – in awards from judicial supremacists who rule in their favor.

The trial court did not disappoint the ACLU, blocking the transfer in April 2005. The judge declared the cross to be “the primary symbol of Christianity” and held that the transfer of the spot on which the cross rests somehow violates the Establishment Clause and the court’s prior injunction. Buono v. Norton, 364 F. Supp. 2d 1175, 1180 (C.D. Cal. 2005) (“Buono III”). The Ninth Circuit affirmed.

On April 28, 2010, the case was rendered moot when the United States Supreme Court ruled in favor of the transfer by Congress of the land around the cross to the Veterans of Foreign Wars.[1]


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