October 2010 - Parks & Recreation - 40

LAW REVIEW continued from page 37

Instead of considering the land transfer statute's significance, the Supreme
Court found the federal district court had
" enjoined the land transfer on an entirely
different basis: its suspicion of an illicit
governmental purpose. "
It examined the events that led to the
statute's enactment and found an intent to prevent removal of the cross.
Deeming this intent illegitimate, the
court concluded that nothing of moment had changed.

On the contrary, the Supreme Court
found the federal district court had
" concentrated solely on the religious
aspects of the cross, divorced from its
background and context. " In so doing,
the Supreme Court found the federal
district court had erred in maintaining
a permanent injunction without attempting " to reassess the findings in light of
the policy of accommodation that Congress had embraced. "
Respect for a coordinate branch of
Government forbids striking down an
Act of Congress except upon a clear
showing of unconstitutionality. The
same respect requires that a congressional command be given effect
unless no legal alternative exists.
Even if, contrary to the congressional judgment, the land transfer were
thought an insufficient accommodation
in light of the earlier finding of religious endorsement, it was incumbent
upon the District Court to consider less
drastic relief than complete invalidation of the land-transfer statute...
The land-transfer statute embodies

In " dismissing Congress's motives
as illicit, " the Supreme Court found the
federal district court " took insufficient
account of the context in which the statute was enacted and the reasons for its
passage. " In particular, the Supreme
Court found an appropriate Establishment Clause inquiry " must take account
of context and consequences. "
Under the circumsta nces of this
case, the Supreme Court found the federal district court " did not attempt to reassess the findings in light of the policy
of accommodation that Congress had
embraced " in the land transfer statute.

Congress's legislative judgment that
this dispute is best resolved through a
framework and policy of accommodation for a symbol that, while
challenged under the Establishment
Clause, has complex meaning beyond
the expression of religious views.
That judgment should not have
been dismissed as an evasion, for the
statute brought about a change of law
and a congressional statement of policy applicable to the case. Even
assuming that the land-transfer statute was an attempt to prevent removal
of the cross, it does not follow that an
injunction against its implementation
was appropriate.

As a result, in light of a congressionally authorized land transfer, the Supreme
Court concluded that the federal district
court should have considered " the necessity of further action, such as signs, to indicate the VFW's ownership of the land. "
As we have noted, Congress directed
the Secretary of the Interior to install
near the cross a replica of its original
memorial plaque. One of the signs

Sport Management

Parks and Recreation

Tourism Management

Online Master of Science in Recreation, Sport and Tourism

Advance your

Professional Career
in just 18 months!

Created in partnership with the Department of Recreation, Sport and Tourism
in the College of Applied Health Sciences and the Office of Continuing
Education, this degree will give you the best opportunity for supervisory or
administrative positions in several different recreation, sport, & tourism fields.

www.rst.illinois.edu/Graduates/MSRST
217-333-4410 | RST-Advisor@ad.uiuc.edu

circle 23 on product information form on page 103

38 Parks & Recreation

OCTOBER 2 0 1 0

www . N R P A . O R G

October 2010 - Parks & Recreation

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