Buono v. Kempthorne

527 F.3d 758, 2008 WL 2039257

Opinions

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The opinion filed September 6, 2007, slip op. 11793, and appearing at 502 F.3d 1069, is amended as follows:

1. At slip op. 11816 [502 F.3d at 1082], footnote 13, delete “Although the Seventh Circuit adopted a presumption that “a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion” in the absence of “unusual circumstances,” Marshfield, 203 F.3d at 491, we decline to adopt such presumption. The Supreme Court’s Establishment Clause jurisprudence recognizes the need to conduct a fact-specific inquiry in this area” and substitute: “The Seventh Circuit stated that “[a]bsent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion. We are aware, however, that adherence to a formalistic standard invites manipulation. To avoid such manipulation, we look to the substance of the transaction as well as its form to determine whether government action endorsing religion has actually ceased.” Marshfield, 203 F.3d at 491. Read as a whole, the Seventh Circuit position looks at the issue on a transaction-by-transaction basis. We agree with this approach. However, to the extent that Marshfield can be read to adopt a presumption of the effectiveness of a land sale to end a constitutional violation, we decline to adopt such a presumption. The Supreme Court’s Establishment Clause jurisprudence recognizes the need to conduct a fact-specific inquiry in this area.”

With this amendment, the panel has voted to deny Defendants-Appellants petition for panel rehearing. Judge McKeown votes to deny the petition for rehearing en banc and Judges B. Fletcher and Whyte so recommend.

The full court has been advised of Defendant-Appellant’s petition for rehearing en banc, and a judge of this court requested a vote on whether this case should be reheard en banc; however, a majority of the active judges did not vote in favor of en banc consideration. Fed. R.App. P. 35. Judge Reinhardt was recused from considering the en banc issues in this case and did not participate in the court’s decision.

The petition for panel rehearing and the petition for rehearing en banc are denied. No further petitions for rehearing will be entertained.