But Congress intervened, blocking the agency from taking down the cross. In 2001, Frank Buono, a retired park service employee, sued the park service with the help of the American Civil Liberties Union chapter in Southern California. Buono, a Roman Catholic, alleged that the cross was an unconstitutional religious display on public land.
A federal judge and the U.S. 9th Circuit Court of Appeals ruled for Buono, saying the cross must be removed. But Congress intervened again and told the Interior Department to give the VFW the acre of land under the cross.
Undaunted, the 9th Circuit struck that down too, saying it "would leave a little doughnut hole of land with a cross in the midst of a vast federal preserve." A "reasonable observer would perceive" this as a "government endorsement of religion," the ruling said.
U.S. Solicitor General Gregory G. Garre urged the high court to review the 9th Circuit's decision, saying it was wrong for at least two reasons: First, Buono, the park service employee, did not have standing to sue over the display of the cross, and second, Congress had solved the problem by giving the land to a private group.
Chief Justice John G. Roberts Jr. has been skeptical of according standing to litigants who cannot show that they have suffered an "actual injury" of some sort. A ruling in favor of the government on the standing issue could have a broad impact, as it would be hard for any objectors to prove that a religious symbol on government property had caused them a true injury.
The two sides also disagree over who is violating the essence of the 1st Amendment. The ACLU and the 9th Circuit said the park service should not show a "preference" for Christianity over Buddhism by allowing a symbol of one while forbidding the other. But the Bush administration's lawyer countered by saying the court's order to tear down the cross could be seen as "demonstrating hostility toward religion."
Next month, ACLU lawyers will file a brief urging the court to turn away the government's appeal. A decision on whether to take up the issue may come in December or January.
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david.savage@latimes.com
