En Banc Rehearing Denied in Buono v. Kempthorne

Yesterday the Ninth Circuit slightly amended its decision in Buono v. Kempthorne but denied rehearing en banc in the case.  This is a case that involves a Latin cross that sits on a rock outcropping (known as Sunrise Rock) in the Mojave National Preserve.  This is a picture of the cross.  The Preserve is a national park in Southern California, about 90 percent of which is federally owned. 

The lawsuit has a complicated history that I won't attempt to summarize.  Howard Friedman has the details, if you'd like to see them.  Here's just a bit of the background.

A California district court found that the display of the cross on government land violated the Establishment Clause and ordered the government to remove the cross from its property.  The decision was appealed.  While that appeal was pending, the U.S. Congress enacted a statute directing the Secretary of the Interior to transfer the land where the cross sits to a private organization in exchange for a piece of privately owned land that was located in another part of the Preserve.  The Ninth Circuit then upheld the district court's decision and later held that the land exchange did not alter the fact that the government was endorsing religion.  Here's a snippet from the opinion addressing the land exchange:

We previously held that the presence of the cross in the Preserve violates the Establishment Clause.  We also concluded that a reasonable observer aware of the history of the cross would know of the government's attempts to preserve it and the denial of access to other religious symbols.  Even a less informed reasonable observer would perceive governmental endorsement of the message, given that "[n]ational parklands and preserves embody the notion of government ownership," that the Sunrise Rock area is used as a public campground, and finally, because of "the ratio of publicly-owned to privately-owned land in the Preserve."  Nothing in the present posture of the case alters these earlier conclusions.  Under the statutory dictates and terms that presently stand, carving out a tiny parcel of property in the midst of this vast Preserve -- like a donut hole with the cross atop it -- will do nothing to minimize the impermissible governmental endorsement.  Nor does the proposed land exchange . . . end the improper government action.  Such a transfer cannot be validly executed without running afoul of the injunction.  (citations omitted)

The government then sought review of this decision by the full Ninth Circuit.  Yesterday, the full Ninth Circuit declined that request.  Five judges of the Ninth Circuit, however, dissented from the denial.  Judge O'Scannlain wrote the dissenting opinion.   Here is the first paragraph of that dissenting opinion:

The opinion in this case announced the rule that Congress cannot cure a government agency's Establishment Clause violation by ordering the 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.

Will the government now ask the Supreme Court to hear this case?  And, if it does, will the Court agree to hear it?  I'll keep watching and let you know.  (Thanks to Howard Bashman for notification of the Ninth Circuit's decision.)