SUPREME COURT OF THE UNITED STATES

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1 No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2008 CRYSTAL DOYLE ET AL., Petitioners, v. ARIF NOORANI, Respondent. On Writ of Certiorari to the Fourteenth Circuit Court of Appeals, Doyle v. Noorani, 600 F.3d 1 (14th Cir. 2008). BENCH MEMORANDUM BEFORE: JUSTICES LUTTIG, KEALEY, AND JOHNSON Andrew Finnicum finnicum.a@law.wlu.edu E. Benton Keatley keatley.e@law.wlu.edu Davis Moot Court Administrators

2 INTRODUCTION The John W. Davis Moot Court Competition introduces Washington and Lee law students to the techniques and skills necessary for successful appellate advocacy. The competition simulates practice before the Supreme Court of the United States by requiring participants to submit briefs and present oral arguments on issues of current legal importance. This year s competition focuses on a question of First Amendment law: whether the Establishment Clause of the First Amendment to the United States Constitution prohibits the government from allowing the VFW to erect and maintain a Latin cross in a federal preserve and whether the subsequent congressionally mandated transfer of the land to the VFW resolves any Establishment Clause violation. This memorandum will summarize some of the arguments available to both petitioner and respondent. On behalf of the Washington & Lee Moot Court Program, thank you for your participation. BACKGROUND OF THE CASE This year s problem and fact pattern were created by the Davis Moot Court Administrators; however, they are loosely based on Salazar v. Buono, (08-472), which came before the United States Supreme Court on October 7, The facts are fully presented in both the opinion of the District Court of the imaginary state of Pascagoula and the opinion of the Fourteenth Circuit Court of Appeals. Both opinions accompany this memorandum. The fact patterns in both opinions are virtually identical. The case focuses on Arif Noorani, a former employee of the National Park Service (NPS) in the Texico National Preserve. In 1934, the Veterans of Foreign Wars (VFW) erected the first Latin cross on Sunshine Rock, located in the 90% federally owned Texico desert in southern Pascagoula as a memorial to veterans. Photos show the presence of wooden signs near the cross stating, "The Cross, Erected in Memory of the Dead of All Wars," and "Erected 1934 by Members Veterans of Foregin [sic] Wars, Death Valley Post 2884." The parties stipulated below that Latin cross is the preeminent symbol of Christianity. The wooden signs indicating the status of the cross as a memorial are no longer present, and the original cross, which is no longer standing, has been replaced several times by private parties since The cross has been a gathering place for Easter Sunrise services since as early as Visitors to the Preserve also use the site to camp. A local resident and member of the VFW built the current version of the cross ("the Cross") sometime in The current version of the Cross lacks an accompanying plaque indicating that it was intended to act as a memorial for soldiers. The Cross is mounted on the top of a prominent rock outcropping on the north side of Sierra Road, a narrow blacktop secondary road that passes through the Texico National Preserve. The Cross, standing between five and eight feet tall, is visible to vehicles traveling on the road from a distance of approximately 100 yards. The Preserve encompasses approximately 1.6 million acres of primarily federally owned land in the Texico Desert. Approximately 86,600 acres of private land remain within the Preserve's boundaries. Another 43,000 acres belong to the State of Pascagoula. The NPS has not opened up the area of Sunshine Rock to individuals to erect other free-standing permanent displays, religious or otherwise, and there are no other free-standing displays in the area. 2

3 The specific events leading up to this suit began in 2004, when the NPS refused the request of Johnny Manitoba, a former NPS employee and long-term acquaintance of Noorani, to erect a "stupa" (a dome-shaped Buddhist shrine) on a rock outcrop at a trail head located near the cross. Mr. Manitoba explicitly told the NPS that the stupa was for meditation purposes. The NPS also indicated to Manitoba that it intended to remove the cross. Following the NPS s announcement about the stupa, in 2005, the American Civil Liberties Union ("ACLU") threatened legal action if the NPS did not remove the cross. The NPS then completed an evaluation of the cross for commemorative significance and concluded that the cross did not qualify for inclusion in the National Register of Historic Places. As a result of correspondence with the ACLU, the NPS decided to remove the cross. The NPS located the private individuals believed to be responsible for maintaining the cross and met with them to discuss the possibility of their voluntarily removing the cross. The individuals expressed their unwillingness to remove the cross and their determination to replace the cross if it were taken down. Two weeks later, an NPS employee informed the local congressman of the NPS's decision to remove the cross. The United States Congress then passed an appropriations bill, a provision of which provided that none of the appropriated federal government's funds may be used to remove the cross. The NPS did not act to remove the cross due to the lack of funds. Later in 2006, Congress designated the cross as a national memorial commemorating United States participation in World War I and provided funds to replace the current cross with a replica of the original cross and a memorial plaque at the foot of the cross. In February 2007, Congress enacted another defense appropriations bill that included a land exchange agreement regarding the Sunshine Rock cross. The statute provides for the transfer of the land surrounding the cross to the local VFW in exchange for other privately held land within the Reserve. This transfer was underway when Noorani filed suit. Noorani is deeply offended by the cross display on public land in an area that is not open to others to put up whatever symbols they choose. Noorani will tend to avoid Sunshine Rock on his visits to the Preserve as long as the cross remains standing, even though traveling down Sierra Road is often the most convenient means of access to the Preserve. Both the District Court and a splintered Fourteenth Circuit agreed with Noorani. This Court, the Supreme Court of the United States, has granted certiorari to resolve the following questions. QUESTIONS PRESENTED I. Whether the presence of the Latin Cross on Sunshine Rock in the Texico National Preserve in the State of Pascagoula violates the Establishment Clause of the First Amendment to the United States Constitution. II. Whether Pub. L. No (a)-(f), 125 Stat (2007), codified at 51 U.S.C. 410aaa-56, mandating the exchange of the land on which the Latin Cross sits on Sunshine Rock to a private party violates the Establishment Clause of the First Amendment to the United States Constitution. 3

4 Per the competition rules, competitors are limited in their arguments to First Amendment Establishment Clause issues. The competitors have been instructed that they cannot argue any other issues; however occasional references to and brief discussion of the Free Exercise and Free Speech clauses may be inevitable depending on the competitor's theory of the case. THE MERITS 1) Whether there is jurisdiction/standing in this case? Jurisdiction is assumed for the purpose of this argument. In contrast to the actual case that underlies this problem, standing is also assumed, and any extensive argument based upon standing would be inappropriate. 2) Whether the display of the cross violates the Establishment Clause? The First Amendment declares that Congress shall make no law respecting the Establishment of Religion. This Court has frequently struggled with exactly how to interpret the Establishment Clause and how to apply the various tests in individual cases. Due to numerous 5 4 decisions and plurality opinions, this Court has often avoided bright line rules in Establishment Clause jurisprudence. The context and facts of each individual case are important. The lower court invited this Court to reexamine its doctrine in this area, but competitors are free to argue under any of the prevailing tests. 3) Supreme Court Precedent: While other Supreme Court case law is certainly pertinent to this issue, the following cases are particularly noteworthy: Lemon v. Kurtzman, 403 U.S. 602 (1971): In the famous Lemon case, this Court established a three-pronged test to determine whether government action violated the Establishment Clause. First, the government action must have a secular purpose. Second, the government action must not have the primary effect of advancing or inhibiting religion. Third, the government action must not foster excessive entanglement with religion. Later cases established that the failure of any one of these prongs is sufficient for the Court to find that a constitutional violation occurred. Edwards v. Aguillard, 482 U.S. 578, 583, 107 S. Ct. 2573, 2577, 96 L. Ed. 2d 510 (1987). While Lemon seems simple enough in its demands, its applicability has been repeatedly called into question by members of the Court. Wallace v. Jaffree, 472 U.S. 38, 106, (1985) (Rehnquist, J., dissenting) (criticizing the Lemon opinion for the difficulty of applying its prongs and concluding that "[t]hese difficulties arise because the Lemon test has no more grounding in the history of the First Amendment than does the wall theory upon which it rests"). Justice Scalia has gone so far as to suggest that the Lemon test has been killed and resurrected at the whim of the Court. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, , 124 L. Ed. 2d 352 (1993) (Scalia, J., concurring in the judgment) 4

5 ("Like some ghoul in a late-night horror movie..., Lemon stalks our Establishment Clause jurisprudence....") Regardless, the lower courts assumed that Lemon remains the prevailing test in Establishment Clause jurisprudence. Lynch v. Donnelly, 465 U.S. 668 (1984): Lynch involved the government display of a nativity scene amongst other holiday symbols during the Christmas season. In retrospect, it is not the majority opinion in Lynch that has deeply affected Establishment Cause analysis. Rather, Justice O'Conner's concurrence dealing with how to interpret the first two prongs of the Lemon test, purpose and primary effect, has garnered the most attention. In her concurrence, Justice O'Conner suggested that the "effect" prong "asks whether, irrespective of government's actual purpose, the practice... in fact conveys a message of endorsement or disapproval." Lynch, 465 U.S. at 690, (O'Connor, J., concurring). The "endorsement" test depends on the observation of the reasonable observer. However, how much information this Court will impute to a reasonable observer is unclear. Justice O'Connor has suggested that a reasonable observer "must be deemed aware of the history and context of the community and forum in which the religious display appears," including ownership of the land in question. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780, (1995) (O'- Connor, J., concurring). Others have argued that a reasonable observer should be less wellinformed. Id. at 800 n.5 (Stevens, J., dissenting). Van Orden v. Perry, 545 U.S. 677 (2005) (plurality opinion): In Van Orden, this Court shunned the use of either Lemon or Lynch in cases involving passive displays erected on government land by private parties. Instead, this Court focused on the context of the display and the history of both the nation as a whole and the display in particular. In Van Orden, the Ten Commandments were displayed by a private party amongst various other displays on state property. Based on the facts that the monument was surrounded by other displays, that the Ten Commandments had a longstanding tradition in the United States, and that this particular monument had gone unchallenged for forty years, the Court upheld the constitutionality of the display by the narrowest of margins. McCreary County v. ACLU. 545 U.S. 844 (2005): Decided the same day as Van Orden, McCreary involved an attempt by the local government to display the Ten Commandments in the local courthouse. Because the display in McCreary was recently erected and consistently challenged since its initial erection, Justice Breyer switched sides and voted against the display. The majority applied Lemon and found that the display had no secular perpose whatsoever. 4) Whether the land transfer solves an constitutional violation. Apparently fearing that a court may side with the ACLU during litigation, Congress commenced a process by which the government transferred the land upon which the cross sits to 5

6 the VFW. While Noorani challenged the statute before the transfer actually took place, the transfer would go forward should the Court choose to reverse. The government will likely argue that after the transfer, there would be no further violation of the Establishment Clause. Indeed, if the transfer goes through, the VFW's concerns about Free Exercise and Free Speech would be even more increased. Noorani will likely argue that the land transfer is a sham for various reasons. The issue of the land transfer as a remedy to an Establishment Clause violation is largely an issue of first instance in this court. However, both the parties and the lower courts in this case seemed to find two cases from the Seventh Circuit instructive to varying degrees. Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000). In Marshfield, the Seventh Circuit adopted a presumption that "absent 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. To the extent that Marshfield can be read to adopt a presumption of the effectiveness of a land sale to end a constitutional violation, the lower courts in this case refused to adopt such a presumption. This debate over presumption also ties into the larger question about how much deference is due to Congress in this situation. Marshfield held that the sale of 0.15 acres of city park land containing a statute of Jesus Christ to a private organization "validly extinguished any government endorsement of religion" because there were not unusual circumstances. However, the Seventh Circuit remanded to ensure that the privately held land would be clearly demarcated from the public park. Mercier v. Fraternal Order of the Eagles, 395 F.3d 693 (7th Cir. 2005) In Mercier, the Seventh Circuit held that the sale of 440 square feet of a city park containing a Ten Commandments monument to a private organization was valid because there were no "unusual circumstances." According to the Seventh Circuit, unusual circumstances that will invalidate a sale include (1) "a sale to a straw purchaser" leaving the public entity "with continuing power to exercise the duties of ownership," (2) a sale that does not comply with applicable law governing the sale of land by a public entity, or (3) "a sale well below fair market value resulting in a gift to a religious organization." Mercier, 395 F.3d at 702; Although the lower courts addressed Marshfield and Mercier, they replaced the Seventh Circuit's unusual circumstances with three of their own, (1) the government's continuing oversight and rights in the site containing the cross after the proposed land exchange; (2) the method for effectuating the land exchange; and (3) the history of the government's efforts to preserve the cross. 6

7 CONCLUSION The above considerations provide some of the possible arguments, and their counterarguments, that the participants are likely to present. The participants must only argue First Amendment Establishment Clause issues, but are in no way limited to the above arguments on those issues. The arguments here presented are based largely on the law the participants were given. Any additional arguments that you find to be persuasive or creative should be appropriately rewarded. As may be apparent, most of the issues in this case can be argued either way and have no apparent correct answer. The participants are being evaluated on their ability to persuasively present the arguments and respond to the judges. THANK YOU Most importantly, thank you very much for your generous time and attention to this year s 30 th Annual John W. Davis Appellate Advocacy Competition. We are delighted that your schedules permit you to assist us by judging the Final Round. This year's competition included many gifted competitors, which made the decision to narrow the field to these four Finalists especially difficult. We hope and expect that the Finalists will present compelling legal arguments with a completely professional style. In the meantime, should any questions arise regarding the Davis Moot Court Competition generally or any of the information contained in the materials, please contact either me, Andrew Finnicum (at finnicum.a@law.wlu.edu) or E. Benton Keatley (at keatley.e@law.wlu.edu). Thank you again for your generous attention. 7

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