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High Court: Lower Court Erred In Stopping Transfer Of Land Under Cross

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court in a 5-4 decision on April 28 reversed and remanded a lower court decision and held that a district court judge erred in enjoining Congress from transferring government land on which a Christian cross stands into private hands (Ken L. Salazar, Secretary of the Interior, et al, v. Frank Buono, No. 08-472, U.S. Sup.).

After the National Park Service announced in 1999 that it planned to remove the cross, which is in the Mojave National Preserve, Congress began passing a series of laws to preserve the cross, including a statute ordering the transfer.

The litigation challenging the government's attempts to skirt establishment clause issues began in March 2001, when Frank Buono sued then-Secretary of the Interior Gail Norton and a number of government officials in the U.S. District Court for the Central District of California.

In April 2005, Judge Robert J. Timlin held that the presence of the cross was a violation of the establishment clause and enjoined the government from transferring the land.  The United States appealed, and a Ninth Circuit U.S. Court of Appeals panel, consisting of Circuit Judges Betty B. Fletcher and M. Margaret McKeown and U.S. Judge Ronald M. Whyte of the Northern District of California, sitting by designation, affirmed.

On Oct. 8, 2007, the United States filed a petition for a writ for certiorari in the U.S. Supreme Court, which was granted Feb. 23, 2009.  Oral argument was heard Oct. 7.

Justice Anthony M. Kennedy delivered the majority opinion and was joined in full by Chief Justice John G. Roberts Jr. and in part by Justice Samuel Anthony Alito Jr.

In addition to finding that Judge Timlin erred, the court held that Buono has standing to maintain his challenge.

Objecting to the remand of the issue, Justice Alito said the record has been sufficiently developed for the high court to decide and "hold that [Congress' law] may be implemented.

Justice Antonin Scalia, writing a concurring opinion joined by Justice Clarence Thomas, agreed that the District Court erred but said Buono lacks standing and, therefore, the District Court cannot decide the merits of the dispute.

Saying Judge Timlin had not erred, Justice John Paul Stevens wrote a dissenting opinion in which he was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Associate Justice Stephen G. Breyer wrote a separate dissenting opinion and said there "is no federal question of general significance in this case."  Justice Breyer said the writ should be dismissed as improperly granted and the high court "should simply affirm the Ninth Circuit's judgment."

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