Foundation Considers En Banc Appeal in 7th Circuit Decision on Ten Commandments

Dissenting Judge Calls La Crosse Remedy an "Obvious Sham" Bordering on "Fraud"

(Madison, Wis.) The national Freedom From Religion Foundation is planning to ask the entire panel of the U.S. 7th Circuit Court of Appeals to review a hostile decision handed down this week by a 3-judge panel, in the Foundation's longstanding challenge of a Ten Commandments monument in a public park in La Crosse, Wis.

After the Foundation filed a lawsuit to remove the religious edict from public property in 2001, the city sold the public land under the religious monument to the Fraternal Order of Eagles, which had donated the monument to the city in 1965. The Eagles have kept the tombstone-like monument in the same position, erecting a fence, gate and a confusing "disclaimer" identifying the tiny area as a "private park."

In a 2-1 decision issued on Jan. 3, Judges Manion and Kanne of the 7th Circuit ruled in favor of the City of La Crosse's sweetheart sale of the land to the Eagles. The city had refused previous offers by the Eagles and a church to move the Ten Commandments. The city initiated the offer to sell the land to the Eagles and refused an offer by the Foundation to buy the park parcel.

Appeals Court Judge Bauer issued a short but indignant dissent, calling the city sale of the park a "sham" bordering on "fraud":

"I believe that the District Court had it right; the actions of the City actually show a stubborn refusal to separate itself from the display of a purely religious monument. Having created a problem by the original act of permitting a monument of the Ten Commandments to be displayed on public property with what any observer would have to conclude was an endorsement of the message of the commandments, the City elected a solution that I think borders on a fraud.

"The disclaimer seems to me to be taken from a scene in the movie 'The Wizard of Oz' in which the phony wizard, whose fraud has been exposed, directs the onlookers to 'pay no attention to that man behind the curtain;' a disclaimer that is no more or less effective than the disclaimer at the monument. It too is an obvious sham."

"The monument belongs on what is obviously private property or a church setting. It does not belong where it is."

In two strong, separate rulings, the lower court judge, District Judge Barbara B. Crabb, had soundly rejected the ruse. She wrote that the willingness to "carve up a public park to insure that the symbol does not have to be moved" actually "exacerbates the violation."

"No matter how many signs the City posts, its endorsement is still apparent from the privileged space it has provided the private speaker." She had added that "it is almost farcical to say that 22' x 20' parcel is a separate 'park,' . . . it is impossible to defeat the impression that the monument is still part of the City's property."

Remarkably, one of the arguments put forth by Manion congratulates the city for finding a solution that divests itself of the religious monument, while "the Monument can remain in the location it has occupied for many years." Manion wrote that this has a "practical goal" since "Eagles headquarters is, and has long been, directly across the street from the Monument," which is conveniently lit at night by the Eagles!

This is the Foundation's second lawsuit against the monument. It lost its first case in 1987 on procedural grounds only, when Judge Crabb found that the La Crosse plaintiff did not have standing. In its second round, the Foundation impressively signed up 22 local plaintiffs, with diverse religious and nonreligious views.

"We extend warm thanks to all of our La Crosse plaintiffs," said Annie Laurie Gaylor, Foundation co-president.

"We remain utterly opposed to this religious right-promoted 'remedy' for an Establishment Clause violation. The sale of valuable public land to religious entities is not an appropriate remedy for a longstanding endorsement of religion by government. The result is simply to preserve a religious monument as the centerpiece of a public area. We agree with Judge Bauer that this was a 'sham' solution.

"But there is consolation in the fact that our lawsuit achieved the goal of requiring La Crosse to divest itself of a monument endorsing the bible. Our lawsuit proved that a Ten Commandments marker on public land is unconstitutional."

The two attorneys handling the case, James Friedman and James Peterson, are considering a motion to ask the 7th Circuit panel to correct several errors of fact contained in Manion's decision. A motion for an en banc review by the entire body would follow.

To read a PDF of the entire decision, select this link:

Sue Mercier et al v. Fraternal Order of Eagles & City of La Crosse, 02 C 376, January 2, 2005

The Freedom From Religion Foundation, based in Madison, Wis., a 501(c)(3) nonprofit educational charity, is the nation's largest association of freethinkers (atheists, agnostics), and has been working since 1978 to keep religion and government separate.

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