Buono v. Kempthorne

joined by TALLMAN, BYBEE, CALLAHAN, and BEA, Circuit Judges:

The opinion in this case announces the rule that Congress cannot cure a government agency’s Establishment Clause violation by ordering sale of the land upon which a religious symbol previously was situated. Because such a novel rule contravenes governing Supreme Court precedent, creates a split with the Seventh Circuit on multiple issues, and invites courts to encroach upon private citizens’ rights under both the speech and religion clauses of the First Amendment, I respectfully dissent from our order rejecting rehearing en banc.

I

Seve…