October 2010 - Parks & Recreation - 39

argued that " the cross would continue to stand on Sunrise Rock, which has
no visual differentiation from the rest
of the primarily federally owned Preserve. " Further, Buono noted that the
land-transfer statute required " the land
be returned to the Government if not
maintained as a World War I memorial. " As a result, Buono claimed the VFW
would be prevented from " dismantling
the cross even if it wanted to do so " because " the cross remains designated
a national memorial by an Act of Congress. " Under such circumstances, Buono maintained that the government
should be " permanently enjoined from
implementing the land-transfer statute "
because " the transfer was an invalid attempt by the Government to keep the
cross atop Sunrise Rock. "
The federal district court agreed and
granted Buono's request for injunctive
relief and " forbade the Government from
permitting the display of the Latin cross
in the area of Sunrise Rock in the Mojave
National Preserve. " In so doing, however,
the federal district court " expressly declined to consider whether the government's actions regarding the cross had a
secular purpose, or whether they caused
excessive entanglement with religion. "
Similarly, the Court of Appeals did not decide whether the government's action, or
non-action, with respect to the cross had
been motivated by a secular purpose.
Instead, the federal district and appellate courts " evaluated the primary effect
of the cross by asking how it would be
viewed by a 'reasonable observer'. " In
the opinion of the lower courts, " a reasonable observer would perceive a cross
on federal land as governmental endorsement of religion. " Based upon this
analysis, no judicial view was expressed
as to whether a transfer completed under the land transfer statute " would pass
Constitutional muster " or " whether the
land transfer was a bona fide attempt to
comply with the injunction. "
The Supreme Court granted a petition to review the opinions of the lower
federal courts that this cross on federal
land continued to violate the Establishment Clause despite the passage of the
land transfer statute.

other nature venue, where they experience the natural world (and green exercise)
together.
Respect
Statute
nature clubs,
and similar
InFamily
determining
whether
the federal
district court
had properly
enjoined
approaches,
provide
a greater sense
of
the
government
from
implementing
safety for fearful parents. They can be
the land-transfer
statute, thewhether
Supreme
created
in any neighborhood,
Court
noted
that
an
appropriate
inquiry
inner city, suburban, or rural. The
clubs
would have " acknowledge[d] the statcan be joined or created by any kind of
ute's significance. "

family. They increase motivation; it's
much more likely that a family will
show
up at a park
Saturday
An injunction
is anon
exercise
of amorning
if they
know
there'sauthority,
anothertofamily
court's
equitable
be ordered for
onlythem.
after taking
into account all
waiting
And, importantly,
of theno
circumstances
on the
there's
need to waitthat
forbear
funding.
need forcan
prospective
relief and a court
Families
do this themselves,
and
should
be
particularly
cautious
when
they can do it now.
contemplating relief that implicates
Similar approaches are catching on.
public interests.

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P A R K S

&RECREATION

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Parks & Recreation 37

October 2010 - Parks & Recreation

Table of Contents for the Digital Edition of October 2010 - Parks & Recreation