The Freedom From Religion Foundation has asked the entire panel of the U.S. 7th Circuit Court of Appeals to review a hostile decision handed down in January by a 3-judge panel over its longstanding challenge of a Ten Commandments monument in a public park in La Crosse, Wis.
After the Foundation filed a lawsuit in 2002 to remove the religious edict, donated by the Fraternal Order of Eagles to the City of La Crosse in 1965, the city sold the public land under the religious monument to the Eagles. The Eagles have kept the tombstone-like monument in the identical spot, erecting a fence, a 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 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 ignored an offer by the Foundation to buy the park parcel. The Foundation contested the sale as well as the price, and argued the sale did not conform to a city ordinance.
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."
Crabb argued that "it is almost farcical to say that a 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."
One of the stranger 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 the "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, retired schoolteacher Phyllis Grams, 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 '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. A Ten Commandments marker on public land has been proved to be unconstitutional."
The two attorneys handling the case, James Friedman and James Peterson, have filed a motion to correct several errors of fact contained in Manion's decision. The Foundation has also filed a request for an en banc review by the entire body. The attorneys believe Manion and Kanne, in vacating Crabb's ruling against the sale, erred in not affirming Judge Crabb's ruling that Ten Commandments monuments are unlawful on public property.
Judge Manion previously dissented in the Books case, in which the 7th Circuit ruled it unconstitutional to place a Ten Commandments in front of the Indiana State Capitol.
To read the entire decision, see Sue Mercier et al v. Fraternal Order of Eagles & City of La Crosse, 02 C 376, January 2, 2005.