The story began when a number of local organizations held a "Meet the Candidates" forum prior to the last Charleston City Council election. Each sponsoring organization was allowed to ask one question of the candidates on the panel.
The organization to which I belong, the Secular Humanists of the Lowcountry, asked this: "As you know, the City Council starts meetings with a prayer. Since you will represent all your constituents, not just those who are religious believers, will you consider periodically allowing nonbelievers to give the invocation?"
Kwadjo Campbell was the only candidate who agreed. After winning the election, he invited me to give the invocation at the council meeting on March 25. (See sidebar.)
An invocation is usually, but not always, a prayer. So why would an atheist like me want to give an invocation at a City Council meeting? Certainly not because I wanted to offend religious council members--in fact, I prepared an inclusive invocation that I hoped all would appreciate. I looked forward to the presentation with the hope it would encourage more tolerance toward everyone in the community.
As Mayor Riley introduced me, I was startled to see several City Council members leave the room. When I finished the invocation, council members Bleecker, Gallant, George, Gilliard, Lewis, Waring and Campbell (who had arrived late to the meeting) walked back in, just in time to recite the Pledge of Allegiance.
Two of the councilmen who left, Wendell Gilliard and Robert George, later stated their reasons in a March 27 Post and Courier article. Councilman Gilliard said an atheist giving an invocation is an affront to our troops, who are "fighting for our principles, based on God." I guess Gilliard apparently believes our troops are involved in a holy war. However, we are not the Taliban.
Each is free to base his or her principles for going to war or objecting to it on the dictates of personal conscience. The principles of our country, on the other hand, are based on our secular Constitution, which makes no mention of God. That same Constitution guarantees the right of all citizens to be represented and not shunned by their elected officials, regardless of the religious beliefs of those officials.
Councilman George said he "would not have been comfortable had he stayed." He then gratuitously said about me, "He can worship a chicken if he wants to, but I'm not going to be around when he does it." Perhaps Councilman George does not realize that many of us who stand politely for religious invocations believe that praying to a god makes no more sense than praying to a chicken.
In trying to understand the walkout, I contacted some of the council members who had participated. Councilman Gallant gave me a biblical justification from Psalm 14:1: "The fool says in his heart, 'There is no God.' They are corrupt, their deeds are vile; there is not one who does good." He went on to tell me, as did other council members, that the walkout was not personal.
I knew the walkout was not personal, because those who left did not know me personally. I knew they could not have left because of the words in my invocation, since they did not stay to hear them. Frankly, I would have been less upset had the walkout been personal.
My goal was not so much to be liked by council members as for them to listen to one more segment of the community they represent.
In recent years, Charleston has taken steps to become a progressive city that celebrates, rather than fears, its diversity. The walkout, however, vividly shows that we are still engaged in one of the last civil rights struggles in which blatant discrimination is viewed as acceptable behavior. Of course, bigotry exists everywhere, but it is especially lamentable when public acts of intolerance at government functions are later defended in the media by government officials.
As one who tries to turn lemons into lemonade, I have noticed some positive results stemming from this incident. The Associated Press distributed the story of the walkout to newspapers around the country. I have heard from Christians in many places, including Charleston County, who repudiated what they called the "unChristian" behavior of the council members. I've made some new friends from such encounters. A Christian Forum website posted nearly 200 messages on the walkout.
People sent me a number of scriptural passages both for and against the action taken by council members. One argument for the walkout is in II Corinthians 6:14-15. "Believers must not commune with unbelievers. What fellowship hath righteousness with unrighteousness, light with darkness, believers with infidels?" I also received citations from Christians opposed to opening the council meetings with a prayer. They sent me this, from Matthew 6:5-6. "When you pray, be not like the hypocrites who love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. When you pray, enter into the closet, shut the door, and pray to thy Father in secret."
Please permit an atheist to give an interpretation of this last biblical passage. I think it distinguishes between vertical and horizontal prayer. Vertical prayer is directed upward and can be done silently. Horizontal prayer must be audible because it is meant to be heard by other humans. May I suggest a way for Charleston City Council to become more inclusive without offending anyone? Start each meeting with a moment of silence.
South Carolina Foundation Life Member Herb Silverman is a College of Charleston professor and president of Secular Humanists of the Lowcountry. This was adapted from an article appearing in the Charleston Post and Courier on April 14, 2003.
My Atheist Invocation
by Herb Silverman
Thank you for this opportunity to "invoke" a minority point of view. Each of us is a minority in some way. It might be race, religion, sexual orientation, nationality, or any other aspect in which we may be regarded as different. Each of us is also part of some majority. It is when we wear our majority hats that we need to be most mindful of how we treat others. We must pledge our best efforts to help one another, and to defend the rights of all of our citizens and residents.
What divides us is not so much our religious differences in this diverse country, but the degree of commitment we have to equal freedom of conscience for all people.
We are gathered today, both religious and secular members of our community, with the shared belief that we must treat our fellow human beings with respect and dignity.
In this invocation, I don't ask you to close your eyes, but to keep your eyes constantly open to the serious problems that city government can solve or improve. I don't ask you to bow your heads, but to look up at what you can accomplish by applying your considerable talents and experience to the issues that confront us.
As you work together on behalf of all who live in this city, may you draw strength and sustenance from one another through reason and compassion.
I'd like to close in a bipartisan manner by quoting from two presidents I greatly admire--one a Republican and the other a Democrat.
First, the Republican:
When I do good, I feel good; when I do bad, I feel bad. That is my religion.--Abraham Lincoln
And now, the Democrat:
It's remarkable how much you can accomplish if you don't care who gets the credit.--Harry S. Truman
Atheist Invocation Upheld in Utah
The Utah Supreme Court, in a 4-1 ruling on April 11, blessed the right of an atheist to deliver the invocation before the city council in Murray, a suburb of Salt Lake City.
Tom Snyder, 71, had filed suit in state court in 1999 when the council refused him equal access to deliver the pre-Council prayer. The court cited a 1993 decision upholding Salt Lake City's right to hold prayers during official events, as long as the opportunity to deliver the prayer was "nondiscriminatory."
Snyder's "prayer" follows:
"Our mother, who art in heaven (if, indeed, there is a heaven and if there is a god that takes a woman's form) hallowed be thy name, we ask for thy blessing for and guidance of those that will participate in this meeting and for those mortals that govern the state of Utah;
"We fervently ask that you guide the leaders of this city, Salt Lake County and the state of Utah so that they may see the wisdom of separating church and state and so that they will never again perform demeaning religious ceremonies as part of official government functions;
"We pray that you prevent self-righteous politicians from misusing the name of God in conducting government meetings; and, that you lead them away from the hypocritical and blasphemous deception of the public, attempting to make the people believe that bureaucrats' decisions and actions have thy stamp of approval if prayers are offered at the beginning of government meetings;
"We ask that you grant Utah's leaders and politicians enough courage and discernment to understand that religion is a private matter between every individual and his or her deity; we beseech thee to educate government leaders that religious beliefs should not be broadcast and revealed for the purpose of impressing others; we pray that you strike down those that misuse your name and those that cheapen the institution of prayer by using it for their own selfish political gains;
"We ask that the people of the state of Utah will some day learn the wisdom of the separation of church and state; we ask that you will teach the people of Utah that government should not participate in religion; we pray that you smite those government officials that would attempt to censor or control prayers made by anyone to you or to any other of our gods;
"We ask that you deliver us from the evil of forced religious worship now sought to be imposed upon the people of the state of Utah by the actions of misguided, weak and stupid politicians, who abuse power in their own self-righteousness;
"All of this we ask in thy name and the name of thy son (if in fact you had a son that visited Earth) for the eternal betterment of all of us who populate the great state of Utah.
Mystery solved--what are these characters at the
top of the ubiquitious Eagles Ten Commandment tombstones?
Ordinarily, Annie Laurie and I would not spend Easter watching "The Ten Commandments." Sunday is the day of rest, not torture. However, since the Freedom From Religion Foundation has been involved in numerous lawsuits and legal complaints over the display of the decalog in public places, we were curious to see the movie that started it all.
It had been decades since either of us had had the pleasure. Our teenage daughter, Sabrina, a fourth-generation atheist, was quite amused at the scenario of our freethinking family watching (and giggling at) a tacky bible story. The Egyptians get slaughtered by the One True God of Charlton Heston in a bathrobe (who looked like he was taking it all as seriously then as he does now), while the tormented infidel Pharaoh Yul Bryner looked like he was trying to pull out his hair.
This was the movie that prompted the Fraternal Order of Eagles and Cecil B. DeMille to donate hundreds of granite monuments to cities, counties and states around the country starting in the 1950s, hyping the Hollywood film as well as biblical morality. ('Though it's hard to see how turning the Nile to blood, raining hail-fire and murdering all the first-born children makes Jehovah much of a moral example.)
While we were watching the part where God was burning the commandments onto the stone tablets with eye-popping 1956-special-effects animation firebolts, something caught my attention. The laws were etched with characters of a strange language I had seen somewhere before. Then I remembered: they are the same characters that appear at the top of the granite markers we have been complaining about over the years.
When we sued the State of Colorado over one of those monuments on the capitol grounds in 1991, I was called in as an expert witness and was able to identify the Jewish Star of David, the Christian Chi-Rho symbol (which the state's attorney had apparently mistaken for "peace"--Latin "PAX"--since they look like a 'P' and 'X'), and everything else on the face of the monument except for those strange characters at the top. (The successful Books vs. Elkhart case calls them "ancient Hebrew script," but they are certainly not Hebrew.) A witness for Colorado identified them as "Phoenician-like." Since then, I have wondered exactly what those "Phoenician-like" characters mean, and why they are not called simply "Phoenician" or "Canaanite" or some other known language.
After the movie ended (with Heston looking more like a Macy's Santa Claus than a moral lawgiver), I did an Internet search and discovered: those are phony letters! That "Phoenician-like" language was made up for the movie.
In "The Ten Commandments: Notes on the Film," Jeffrey Dane clears up the mystery:
"Significantly, [DeMille] even made special arrangements to have stone tablets cut from the red granite of a peak known in that area today as Jebel Musa (in Arabic, 'Mountain of Moses'): Mt. Sinai itself. The tablets, which DeMille kept in his office for a time after the film's completion, are about 21" long, 11" wide and 1" in thickness. This was corroborated in a letter to the author by Henry Noerdlinger, chief of DeMille's research staff. Bearing little similarity to what we recognize today as Hebrew but having a strong resemblance to the ancient and angular Phoenician alphabet (roughly contemporary with the Canaanite era and written only with consonants and no vowels), the symbols on the tablets were written for the film by Dr. Ralph Marcus of the Institute for Oriental Studies at the University of Chicago." (http://inkpot.com/film/essays/tencommandments.html)
I suppose those characters were concocted to convey a sense of antiquity or authenticity in the film. How many people pausing to view the Ten Commandments in Milwaukee (before we got it removed), Denver, Indianapolis or La Crosse, Wisconsin (the site of our current lawsuit) realize those cartoon symbols don't mean a thing? It's a showbiz prop!
Well, it's all showbiz. I always thought that when a movie is no longer playing in theaters, the posters should come down.
Dan Barker, a former minister and author of Losing Faith in Faith: From Preacher to Atheist, is public relations director of the Freedom From Religion Foundation.
Editor's note: If you care to catch a secular antidote to the "Ten Commandments" next year, try the equally long "Easter Parade" with Judy Garland and Fred Astaire. Dan's father, a musician who used to play with Hoagy Carmichael and still plays in bands, can be caught in a cameo early in the film playing a trombone and flirting with Judy Garland as she sings "I Want to Go Back to Michigan."
Paint balls were thrown at the sign identifying the Lake Hypatia turn-off near Munford, Ala., where the Cleveland family activists have set up a "freethought advance" (not retreat). The sign was donated by master sign-maker Bill Teague.
The Cleveland land hosts the Freedom From Religion Foundation's southern Freethought Hall and Atheists in Foxholes monument, as well as a lake, campgrounds, pavilion and shady parks. Pat and Roger Cleveland, who founded the Alabama Freethought Association, a Foundation chapter, and Melody Cleveland, open up their campgrounds every year for the annual "Glorious Forth" Independence Weekend gala.
Star Washers cleaning up the damage (from left to right) are: Cia Wallace, Victoria Driggers, Jessica Driggers (on ladder) and Wil McGriff, president of Birmingham Freethought Society (a UAB college campus group), holding the ladder.
The July 4-6 event features speakers, relaxation and a promise there will be "No preaching - no praying - no walking on water."
Speakers include: Charleston Gazette editor-in-chief Jim Haught; Foundation musician Dan Barker and Pulitzer Prize-winning editorial cartoonist Steve Benson in their "antigodville vaudeville" act " 'Toons 'n Tunes"; and American Humanist Association president Mel Lipman.
Registration is $25 per FFRF member; $30 per non-FFRF member; $15 per student, with four group meals (Friday night, Saturday lunch, Saturday dinner, Sunday non-prayer brunch) at $8 per meal per adult, $5 per meal per child under 12. Register by June 15 (no meal orders at door; late $5 fee after June 15). Make checks payable to AFA, Attn: July 4th, PO Box 571, Talladega AL 35161.
This photo of the newly fenced Ten Commandments was submitted with the Foundation's brief to the federal court.
IN THE UNITED STATES
DISTRICT COURT FOR THE
WESTERN DISTRICT OF
Sue Mercier, Elizabeth J. Ash, Angela Belcaster, Janet Bohn, Julie Chamberlain, Maureen Freedland, David Goode, Betty Hammond, Curt Leitz, Constance R. Long, David W. Long, Myrna D. Peacock, Becky Post, James L. Reynolds, Ellen Dodge Severson, Eric On, Leslie Slauenwhite, Herman S. Wiersgalla, Howard Wiersgalla, James E. Wiffler, Robert Wingate, Henry Zumach, and Freedom From Religion Foundation, Inc., Plaintiffs, v. City of La Crosse, Defendant.
Case No. 02-C-0376-C
BRIEF In Support of Plaintiffs' Motion for Summary Judgment
The City of La Crosse has not taken seriously its constitutional duty to maintain a "wall of separation between church and state." See Everson v. Board of Educ., 330 U.S. 1, 161 (1947). The Ten Commandments monument displayed by the City of La Crosse is inherently religious, and the City's display of that monument in a city park constitutes an endorsement of religion. The City has, since this litigation began, attempted to sell a tiny parcel of land under and immediately around the monument to the local chapter of the Fraternal Order of Eagles, the entity that donated the monument to the City thirty-eight years ago. But this attempted sale, calculated to evade the City's constitutional obligations, does not terminate the City's endorsement of religion. The material facts are undisputed, and the plaintiffs are entitled to summary judgment that the City has violated the Establishment Clause of the First Amendment and its Wisconsin counterpart.
The City of La Crosse has, since 1965, displayed a monument depicting the Ten Commandments (the "Monument") in Cameron Park, a small city park located in downtown La Crosse. Proposed Findings of Fact In Support of Plaintiffs' Motion for Summary Judgment. The Monument is one of many such monuments given to local governments in the late 1950s and 1960s by chapters of the Fraternal Order of the Eagles. See Books v. City of Elkhart, 235 F.3d 292, 294-95 (7th Cir. 2000) (recounting background to the Eagle's Ten Commandments monuments). These monuments have been the subject of previous constitutional challenges in federal courts, and those courts consistently have held unconstitutional the display of the monuments on government property.1 See id.; Adland v. Russ, 307 F.3d 471(6th Cir. 2002); ACLU Nebraska Foundation v. City of Plattsmouth, 186 F. Supp. 2d 1024 (D.Neb. 2002); see also Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766 (7th Cir. 2001) (considering a different Ten Commandments monument, but acknowledging that the display of the Eagles' version would violate the Establishment Clause).
The La Crosse Monument is granite, and it stands about five and one-half feet high and three and one-half feet wide.
The most prominent element on the face of the Monument is a version of the Ten Commandments derived from Catholic, Protestant, and Jewish versions of the religious text. See also Freedom From Religion Foundation, Inc. v. Zielke, 663 F. Supp. 606, 607-08 (W.D. Wis. 1987). It reads:
the Ten Commandments
I AM the LORD thy God
Thou shalt have no other gods before me
Thou shalt not make for thyself any graven images
Thou shalt not take the Name of the Lord thy God in vain
Remember the Sabbath day to keep it holy
Honor thy father and thy mother that thy days may be long upon the land which the Lord thy God giveth thee Thou shalt not kill
Thou shalt not commit adultery
Thou shalt not steal
Thou shalt not bear false witness against thy neighbor
Thou shalt not covet thy neighbor's house.
Thou shalt not covet thy neighbor's wife nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's.
Above the text of the Ten Commandments are two small tablets representing the traditional form of the Ten Commandments tablets as believed by some to have been delivered to Moses, surrounded by a floral design. Id. Between the tablets is the symbol of the all-seeing eye, and below that is an eagle grasping an American flag. Id. Below the text of the Ten Commandments are two Stars of David, and between them is a traditional monogram symbol for Christ, the Greek letters Chi and Rho superimposed on each other. Id. At the bottom of the face of the Monument is a scroll, which reads:
Presented to the City
of La Crosse by La Crosse Aerie
and Auxiliary No. 1254 of the
Fraternal Order of Eagles
The local chapter of the Eagles requested permission to install the Monument in Cameron Park in fall 1964, and the La Crosse Park Board considered the proposal at its September 8, 1964, meeting. After the Eagles provided the park board with photographs of the proposed monument, the board gave permission to the Eagles at its October 5, 1964, meeting to erect the Monument in Cameron Park. The location of the Monument within the park was to be determined by Eugene Fry, director of city parks and recreation. Id. Although the minutes of the park board meetings do not disclose the purpose of the Monument, the installation was, apparently, timed to coincide with the 63rd annual convention of the Fraternal Order of Eagles to be held in La Crosse.
The following April, six months after the installation of the Monument had been approved, the La Crosse area experienced severe flooding. Fry coordinated the efforts of several hundred students who volunteered to fill sandbags. Id. During the June 1965 dedication ceremony, the past president of the local chapter of the Eagles indicated that the monument was "dedicated especially to those young people who helped during this spring's flood." But neither the Monument itself nor any surrounding sign indicates that the Monument was connected to the 1965 flood--that is, until this litigation began. The Monument was offered by the Eagles and accepted by the City before the flood. In other words, the City's acceptance of the Monument for display in Cameron Park had nothing to do with the flood.
Cameron Park is a one and one-half acre park in downtown La Crosse, bordered by Fourth and Fifth Streets to the east and west, by King Street to the North, and by private property to the south. The city classifies Cameron Park as a "neighborhood park," which means that it is equipped with benches and its primary purpose is "passive" recreation. Also on King Street, directly across from the Monument, is the local chapter of the Eagles. From the top of the Eagles building, a spotlight illuminates the Monument at night. Id.
Several businesses regularly used by the plaintiffs also are located around Cameron Park and the Monument, notably the People's Food Coop, the Hunan restaurant and the Wells Fargo Bank. During the growing season, Cameron Park is the location of a weekly farmers' market, licensed by the City. Although no governmental buildings are within sight of the Monument, Cameron Park has been the site of public assemblies and political demonstrations. No one can use the park, patronize the surrounding businesses, or participate in the farmers' market or any other public assembly in the park, without coming into contact with the Monument.
In June 2001, the Freedom From Religion Foundation ("FFRF"), through counsel, asked the City to remove the Monument from Cameron Park. The City refused this request. Id. Instead, on July 11, 2002, the Common Council of the City passed a resolution authorizing the sale to the Eagles of a small piece of land--twenty by twenty-two feet--immediately under and around the Monument.2 The deed to the Eagles contains the restriction that "appropriate fencing, landscaping and signage shall be provided by 10/24/02 and maintained in order to commemorate the youth of the La Crosse area for their assistance and great help for the spring 1965 flood that the City of La Crosse experienced." The Eagles installed a wrought iron fence, approximately four feet high, around the perimeter of the parcel on October 24, 2002. The fence, as configured less than a week ago, is pictured below:
On March 18, 2003, the Eagles installed four identical signs (which the City considers to be permanent) on the fence, one near each corner. Each sign is approximately fourteen inches wide and twenty inches tall. One of those signs is pictured below.
In light of the Seventh Circuit decision in Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000), the display of an Eagles Ten Commandments Monument in a city-owned park undoubtedly constitutes the City's endorsement of religion in violation of the Establishment Clause of the First Amendment. The City of La Crosse has effectively conceded as much by purporting to transfer to the Eagles the parcel of land on which the Monument is displayed. The question for the Court is whether the City's attempt to transfer this twenty-by-twenty-two-foot parcel terminates the City's endorsement--and the perception of that endorsement--of the religious message on the Monument. It does not.
The attempted transfer of the parcel does nothing to terminate the City's endorsement of religion. That transfer was, admittedly, a strategy to "get around" the First Amendment and to maintain the Monument in the park, where it remains today. Even if the City complied with the formal requirements of a sale of park property--which it did not--what the City deems to be "appropriate fencing and signage" does not disavow the inherently religious message of the Monument.
The facts surrounding the display of the Monument are undisputed. Accordingly, whether its display violates the state or federal constitution can be decided as a matter of law. Pursuant to Federal Rule of Civil Procedure 56, the plaintiffs are entitled to summary judgment that the City's continued display of the Monument in Cameron Park violates their rights under the First Amendment to the United States Constitution and Article I, ¤ 18 of the Wisconsin Constitution.
The plaintiffs have standing to challenge the constitutionality of the display of the Monument in Cameron Park.
Each individual plaintiff has standing to challenge the constitutionality of the Monument if (1) the plaintiff has suffered an injury in fact, (2) that injury is fairly traceable to the City's action, and (3) that injury will likely be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
In the context of the Establishment Clause, a plaintiff can establish "injury in fact" by showing that the plaintiff has undertaken a special burden or has altered behavior to avoid the offending object. See Books, 235 F.3d at 299 (citing other cases). Virtually all of the individual plaintiffs in this case have altered their behavior to avoid the monument as best they can.
A plaintiff also may demonstrate an injury in fact attributable to a religious display by showing that the plaintiff is forced to view the offending religious object to exercise the right to attend the government-owned place where the object is located. See Books, 235 F.3d at 300-01 (citing Doe v. County of Montgomery, 41 F.3d 1156, 1159-61 (7th Cir. 1994)). Although no government building is within sight of the Monument, and therefore the plaintiffs are not required to encounter the Monument, the plaintiffs are entitled to use the city-owned Cameron Park. They cannot do so, however, without encountering the Monument and its offending religious message. Although one need not visit Cameron Park to vote or to pay one's taxes, Cameron Park is part of the civic life of the community. It is, in the first place, a government-owned recreation facility open to all. It is also the regular location of a farmers' market and the occasional site of public assemblies. It is in the heart of the City, and the daily routines of the plaintiffs inevitably bring them in contact with the Monument. The plaintiffs cannot avoid the Monument when they exercise their right to use Cameron Park and conduct their daily affairs in that part of the City. And thus, those plaintiffs who have chosen to endure the Monument rather than always alter their routines to avoid it also have alleged an injury in fact.
In sum, the City's endorsement of religion in Cameron Park forces the plaintiffs to choose among three burdensome courses of conduct. The plaintiffs must either (1) endure the offending religious message on the Monument; (2) forgo the benefit of Cameron Park and the businesses in that area; or, (3) alter their behavior as best they can to avoid seeing the Monument. The plaintiffs have, to varying degrees, done all three. Under the principles articulated by the Seventh Circuit in Books, citizens forced into this choice have standing to challenge the constitutionality of the Monument.
FFRF has standing as an organization to bring this action on behalf of its members who suffer direct injury as a result of the City action. See Harris v. City of Zion, 927 F.2d 1401, 1405 (7th Cir. 1991). FFRF is a national organization, with approximately 5,000 members, whose purpose is to protect the fundamental constitutional principle of separation of church and state. FFRF brings this action on behalf of its members in the La Crosse area who are injured by the display of the Monument, including several who are individual plaintiffs in this suit. Id. Accordingly, FFRF also has standing to challenge the constitutionality of the Monument. See, e.g., Freedom From Religion Foundation, Inc. v. Bugher, 249. F.3d 606, 610 (7th Cir. 2001); Freedom From Religion Foundation, Inc. v. Leean, No. 99-C-813-S (W.D. Wis. May 25, 2000).
The display of the monument in Cameron Park constitutes the city's endorsement of religion in violation of the First Amendment.
The Establishment Clause prohibits any government, whether federal, state, or local, from engaging in any act "whose primary purpose or predominant effect is to promote one religious group at the expense of others or even promote religion as a whole at the expense of the nonreligious." ACLU v. St. Charles, 794 F.2d 265, 270 (7th Cir. 1986); see Freedom From Religion Foundation, Inc. v. Thompson, 920 F. Supp. 969, 972 (W.D. Wis. 1996) ("[T]he heart of the [Establishment] Clause is that government, state or federal, should not prefer one religion to another or religion to irreligion."). The "benefits" clause in Article I, ¤ 18 of the Wisconsin Constitution "carries the same import" and "operate[s] to serve the same . . . purpose" as the Establishment Clause. See Jackson v. Benson, 218 Wis. 2d 835, 876-77, 578 N.W.2d 602 (1998).
The display of the Monument by the City of La Crosse is an act of religious endorsement, which is made clear by Books, 235 F.3d 292, in which the Seventh Circuit held that the display of a virtually identical monument on city property violated the Establishment Clause. The Books court left no doubt that the Eagles Ten Commandments Monuments are inherently religious, regardless of any purported secular purpose.
To determine whether the display of the monument violated the Establishment Clause, the Books court applied the three-part test established by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, a government act only survives constitutional scrutiny if it: (1) has a secular purpose, (2) neither advances nor inhibits religion in its principal or primary effect; and, (3) does not foster an excessive entanglement with religion. Id. at 612-13; see also Fleischfresser v. Directors of School Dist. 200, 15 F.3d 680, 685 (7th Cir. 1994). Government action violates the Establishment Clause if it fails to meet any of these criteria. See Fleischfresser, 15 F.3d at 686.
The first two prongs are sometimes referred to as the "endorsement" test. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989). In this case, as in Books, the display of the Monument violates the endorsement test.
The Primary Purpose Of The La Crosse Monument Is To Endorse Religion.
The first prong of the Lemon test asks whether the primary purpose of the challenged governmental action is to "advance or inhibit" religion. See Agostini v. Felton, 521 U.S. 203 222-23 (1997). The question concerns the government's actual purpose, Edwards v. Aguillard, 482 U.S. 578, 585 (1987), and it is to be judged by evaluating the totality of the circumstances surrounding the placement of the religious monument. See Books, 235 F.3d at 302.
The analysis must begin with the Monument itself. The primary feature of the Monument, of course, is the text of the Ten Commandments. As the Supreme Court has recognized, this text is inescapably religious:
The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day.
Stone, 449 U.S. at 41-42 (footnotes and citations to the Bible omitted). As the Books court recognized, the design of the Eagles Monument enhances the religious nature of its main text by including the Jewish Star of David symbol and the Christian Chi Rho symbol. See Books, 235 F.3d at 302. "It cannot be doubted, therefore, that this monument bearing the Ten Commandments possesses a religious nature." Id.
A religious symbol may, under very limited circumstances, be displayed in a context that invests it with a secular purpose. Given the inherently religious nature of the La Crosse Monument, however, the City has the burden of proving that it has taken steps to "obviate its religious purpose." See Books, 235 F.3d at 303 n. 8; O'Bannon, 259 F.3d at 771. In Books, the court found no significant attempt by the City of Elkhart to present the Ten Commandments in a way that diminished its religious character. To the contrary, the participation of religious leaders in the dedication of the monument demonstrated that "the purpose for displaying the monument was not only to provide youths with a common code of conduct to guide their participation in the civil community but also to urge the people of Elkhart to embrace the specific religious code of conduct taught in the Ten Commandments." Books, 235 F.3d at 303. The court concluded:
Thus, in applying the purpose prong of Lemon, the inherently religious nature of the Ten Commandments is strengthened by the circumstances surrounding the display of the monument. We cannot escape the conclusion that the purpose in displaying this monument was to promote religious ideals.
The City of La Crosse, likewise, has made no effort to present the text of the Ten Commandments in any way that diminishes its religious character. The Monument is the only monument in Cameron Park. It is, therefore, not one element of a larger, secular message, but is one unified, independent, and inherently religious message. And, as in Elkhart, clergy participated in the dedication of the Monument, reinforcing the religious message.
The City purports that the Monument has the secular purpose "to honor the youth of La Crosse area that helped prevent the City from flooding by filling sandbags and other help with the 1965 spring flood." But this avowed secular purpose should be rejected for several reasons. First, the connection between the Monument and the flood was not memorialized at the site of the Monument until this litigation had begun. The City of Elkhart also had attempted such a last-minute conversion by passing a resolution proclaiming the secular purpose of its monument. The Books court rejected it. As the Books court, and the Supreme Court, have made clear, this Court should reject the City's statement of the Monument's secular purpose when the statement of that purpose is made to avoid a First Amendment challenge. See Books, 235 F.3d at 304; Stone, 449 U.S. at 41.
Second, the connection between the Monument and the flood was an afterthought to the decision to erect the Monument. One speaker at the dedication said the Monument was dedicated especially to the youths who fought the 1965 flood. But the timing of that dedication demonstrates otherwise: the Eagles had requested permission to install the Monument, and the City had approved the request, six months before the flood even had occurred.
Finally, the City's stated purpose of honoring flood-fighting youth may explain the need for some sort of monument, but it is not a valid secular reason for displaying a religious monument. The Ten Commandments can be presented by a government as playing a role in our civic life, such as when it is "integrated into the school curriculum . . . in a appropriate study of history, civilization, ethics, comparative religion, or the like," see Stone, 449 U.S. at 42, (citing Abington School Dist. v. Schempp, 374 U.S. 203, 225 (1963)). But courts have rejected such purportedly secular purposes as "honoring our history by reminding society of its core values," O'Bannon, 259 F.3d at 771, and "to 'beautify' the park," City of Marshfield, 203 F.3d at 493. In other words, a valid secular purpose must justify display of a specifically religious text.
The dedication to La Crosse area youth, even if it were the actual purpose of the Monument, does nothing to blunt the Monument's overtly religious purpose. The dedication of the Monument to the young people who fought the flood simply suggests that they were exemplars of the religious code taught in the Ten Commandments, which the City, by its display of the Monument, encourages the people of La Crosse to read, contemplate and embrace. This is not a permissible government objective under the Establishment Clause. See Stone, 449 U.S. at 194.
This Court must conclude, as the Seventh Circuit did in Books, that the display of an inherently religious text on the Monument in Cameron Park has the primary purpose of endorsing religion, and that it therefore violates the first prong of the Lemon test.
The primary effect of the display of the La Crosse Monument in Cameron Park is to convey a message endorsing religion.
Under the second prong of the Lemon test, this Court must consider whether, regardless of the City's actual purpose in the display of the Monument, the display has the effect of conveying a message of endorsing religion. See City of Marshfield, 203 F.3d at 493. The question is whether a reasonable person would believe that the display of the Monument conveys a message of endorsement or disapproval. See id.
As a starting point, the message of an unattended display is naturally viewed as belonging to the owner of the land on which it stands. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 786 (1995) (Souter, J., concurring) (cited with approval in City of Marshfield, 203 F.3d at 491). Thus, the display of the Monument in a city park conveys the message that the City endorses the words and symbols inscribed on the Monument. Given the inherently religious nature of those words and symbols, displaying the Monument in a City park undeniably indicates the City's endorsement of the religious tenets on the Monument, and it conveys the message that those who do not adhere to those tenets are not full members of the civic community.
This impression of governmental endorsement is reinforced by the design of the Monument itself, which links the Judeo-Christian religious tradition with the authority of government. As the Seventh Circuit stated:
In this regard, the placement of the American Eagle gripping the national colors at the top of the monument hardly detracts from the message of endorsement; rather it specifically links religion, or more specifically these two religions, and civil government.
Books, 235 F.3d at 308.
There is nothing else around the Monument--or anywhere in the park--to contradict the obvious message of endorsement by the City. The Monument is not part of a more comprehensive display of the cultural heritage or history of the people of La Crosse. It quite simply stands apart from any context, as a stark assertion that the Ten Commandments are words to live by for anyone who uses Cameron Park.
Thus, regardless of the City's actual purpose in displaying the Monument, its display in Cameron Park has the effect of conveying the message that the City of La Crosse endorses the unmistakably religious message of the Monument. Accordingly, the City's display of the Monument also violates the second prong of the Lemon test.
The purported sale of the land under the La Crosse Monument does not terminate the city's endorsement of religion.
The City of La Crosse has attempted to sell the land under and immediately surrounding the Monument as a means of avoiding the removal of the Monument from Cameron Park, presumably to fall within the rules articulated in City of Marshfield, 203 F.3d 487. This Court must evaluate the form and substance of that sale to ensure that the governmental endorsement of religion actually has ceased. See City of Marshfield, 203 F.3d at 491.
In this case, the City's purported sale of the tiny parcel immediately under and surrounding the Monument does not terminate the City's endorsement of religion. On the contrary, the sale of the land has the purpose and effect of preserving nearly unchanged the display of the Monument in Cameron Park. If the City is permitted to avoid its constitutional obligations with such a tactic, virtually any religious monument could be maintained on virtually any government property through the expedient of excising a minuscule plot under the monument and selling it to a private entity committed to its preservation. The City of Marshfield case does not authorize the City's tactic.
The sale is itself a governmental act that endorses the religious message on the Monument.
The City's purpose in selling the land under and around the Monument was not to disavow the religious message of the Monument, but to preserve the display of the Monument in its present location. By selling the land in a private sale to the entity that had donated the Monument to the City in the first place, the City ensured that the Monument would stay in Cameron Park and would appear to be part of Cameron Park, even if the Monument technically sat on privately owned land.
The City's sale of a piece of Cameron Park was a sham transaction, designed to evade the City's constitutional duty to cease its endorsement of religion. That this transaction was a sham is demonstrated in three ways.
First, unlike the City of Marshfield, the City of La Crosse did not comply with Wisconsin law governing the sale of land by municipalities. Cf. City of Marshfield, 203 F.3d at 492 ("the parties agree that the sale of the property complied with the applicable Wisconsin law governing the sale of land by municipalities"). Wis. Stat. ¤ 27.08(2) (c) empowers city park boards, with the approval of the common council, to "sell or exchange property no longer required for park purposes." The land at issue was required for park purposes. The sale of municipal property authorized by a vote of the city council is voidable if the sale is illegal, fraudulent, or a clear abuse of discretion. See Hermann v. Lake Mills, 275 Wis. 537, 541, 82 N.W.2d 167, 170 (1957).
The city park board and the common council abused their discretion by selling a portion of Cameron Park even though the city faced a shortage of neighborhood park land. Although the July 11, 2002, Resolution authorizing the sale of the land under the Monument declares baldly that "20 feet by 20 feet of land near and under the Ten Commandment Monument is no longer required for park purposes," the City's own Park and Recreation Plan indicates that the City of La Crosse had a significant shortage of neighborhood parks.
Nothing in the City's consideration of the transfer of the land to the Eagles contradicts the Park and Recreation Plan conclusion that the City had a shortage of neighborhood parks. In fact, in considering the transfer, no city entity made any inquiry whatsoever or rendered any finding that the land was not needed for park purposes. That, by itself, is an abuse of discretion.
At the June 20, 2002, meeting at which the park board considered and recommended the sale of the land to the Eagles, the only board member to address whether the land was needed for park purposes said that she had received complaints that there was not enough park land in the La Crosse business area. The City Plan Commission considered the park board's recommendation at its July 1, 2002, meeting. Again, the only commissioner to address the issue of whether the land was needed for park purposes opposed the sale because park land was too precious to the City.
Because the City failed to determine that the land sold to the Eagles was not needed for park purposes, a prerequisite to a proper sale of City park land, the City abused its discretion in selling the parcel under the Monument to the Eagles.
The second factor that demonstrates that the transaction was a sham is the size and position of the parcel itself. The City did not sell a naturally bounded section of the park; it sold a tiny, mid-block segment with only one natural boundary, that being the street. The other three boundaries are arbitrarily cut into the park within a few feet of the Monument itself. Because the parcel is so small, a mere 440 square feet, and because it is arbitrarily cut out of the middle of the block, it cannot meaningfully be separated from the rest of Cameron Park. In City of Marshfield, by contrast, the defendant sold 0.15 acres or 6,583.80 square feet--an area fifteen times larger than that sold by La Crosse. See City of Marshfield, 203 F.3d at 500 Figure C. No matter what fencing or signage appears near the Monument, the La Crosse Monument itself will be closely surrounded by city-owned park land. It will inevitably appear to be located within the boundaries of Cameron Park. And thus, despite the sale of the parcel, the City will continue to own and to be responsible for the maintenance of the immediate setting of the Monument.
Third, the City has expressly stated that the purpose of the sale of the land to the Eagles was to keep the Monument in Cameron Park. In a resolution considered in closed session on April 17, 2002, the Common Council directed the City Attorney that "this gift located in Cameron Park across from the Eagle's Club deserves to remain in its present location by any and all means available to the City." The report of the City Plan Commission recommending the sale to the Eagles explained that "[t]he sale of this land had been recommended by the City Attorney several months ago as a way to keep the monument in place . . . ."
In sum, the transfer of land to the Eagles had but one purpose, "to keep the monument in place," that had nothing to do with terminating the City's actual or perceived endorsement of religion. Because the transaction had the purpose and effect of preserving the display of the Monument, this Court should regard it as a sham that does nothing to terminate the City's endorsement of religion.
The fence and signs erected by the Eagles do not alleviate the city's perceived endorsement of religion.
As the Seventh Circuit made clear in City of Marshfield, the sale of the property on which a religious monument sits does not in itself terminate unlawful governmental endorsement of religion. The portion of the property sold must be unequivocally marked off from the remaining city property, and the city must itself disavow the religious message on the now-private land. If not, the sale of city land poses two constitutional problems.
First, the sale of part of a city park gives a private entity preferred access to a public forum. See City of Marshfield, 203 F.3d at 496. Cameron Park is a city park and a traditional public forum. The sale of the parcel around the Monument, previously within the boundaries of the park, gives the Eagles preferred access to both the parcel it has purchased and the rest of Cameron Park. See City of Marshfield, 203 F.3d at 496 (portion of park sold to private entity remains a public forum). No other entity may erect within Cameron Park an object of such expressive power and permanence as the Eagles Monument.
Second, as long as the boundary between the Monument and the park is indistinct, and the City does not expressly disavow the religious message on the Monument, the perception endures that the City endorses the Monument's religious message. See id. The City must ensure that the speech of the Eagles is not confused with that of the City itself. Given the placement of the Monument within the park, that confusion is likely and the steps taken by the City to alleviate that confusion are entirely inadequate.
In City of Marshfield, the Seventh Circuit held that confusion as to the City's affiliation with religious speech could be alleviated if:
the City (on City property) construct[ed] some defining structure, such as a permanent gated fence or wall, to separate City property from [the private] property accompanied by a clearly visible disclaimer, on City property . . . .
Id. at 497. On remand, this Court required the City of Marshfield to erect a four-foot high wrought, iron fence on city property, and that the following disclaimer be posted on the fence:
This property is not owned or maintained by the City of Marshfield, nor does the City endorse the religious expressions thereon.
Freedom From Religion Foundation v. City of Marshfield, 2000 U.S. Dist. LEXIS 6649, (W.D. Wis. 2000). This Court further specified that the first line of the disclaimer was to be in letters ten inches high, and that the remaining text was to be in letters four inches high. Id.
The fence and signs erected by the Eagles around the La Crosse Monument do not come close to meeting the standards established in the City of Marshfield case. But see footnote 3, supra. First, the City itself did not disavow the Eagles' religious message. Rather, the City has left it to the Eagles to design and erect the fence and appropriate signs. Furthermore, the fence and the disclaimers, according to this Court, are to be located on City property, not that of the Eagles.
Second, the wrought-iron fence installed by the Eagles does not effectively separate city property from private property. Because the fence is so close to the Monument itself, the fence appears to serve as protection for the Monument, not as a property line. In fact, the fence appears to be part of the Monument's display, serving as a frame that highlights the Monument rather than separating it from the rest of Cameron Park.
Third, the signs posted by the Eagles do not disclaim anything. A proper disclaimer must expressly say that the City does not endorse the religious message on the Monument, whereas the signs posted by the Eagles simply indicate that the Monument commemorates the youths who fought the 1965 flood. Furthermore, the signs are too inconspicuous. The largest letters, with the wording "This is the property of La Crosse Eagles Aerie 1254," are approximately an inch high, whereas the trial court in City of Marshfield required the words "Private Park" to be in letters ten inches high. The signs posted by the Eagles are simply too small: because passersby on the street will be able to see the Monument but will be unable to read the signs, the religious message will continue to be attributed to the City.
In sum, through its actions since this litigation began, the City of La Crosse has steadfastly worked to keep the Ten Commandments Monument in Cameron Park. And a reasonable person, viewing the Monument as it is displayed today, would conclude that the City encourages the people of La Crosse to read, contemplate, and embrace the Ten Commandments. Nothing the City or the Eagles have done terminates the City's actual and perceived endorsement of religion.
The City of La Crosse, by surgically removing the Monument from City ownership but changing nothing else, has made a mockery of Establishment Clause jurisprudence. If the sale of 440 square feet of land under an inherently religious monument satisfies the City's constitutional obligations, then virtually any religious monument can be preserved, essentially unchanged, on virtually any government property. The state and federal constitutions cannot be so easily satisfied.
The City of La Crosse has failed to expressly and unequivocally disavow the religious message of the Ten Commandments Monument. In fact, the City has steadfastly embraced that message. Accordingly, the plaintiffs are entitled to summary judgment declaring that the City continues to violate the Establishment Clause of the First Amendment and Article I, ¤ 18 of the Wisconsin Constitution and enjoining the continued display of the Monument on City property.
Dated this 10th day of April, 2003.
LA FOLLETTE GODFREY & KAHN
1 Although the Tenth Circuit upheld the display of an Eagles Ten Commandments monument in Anderson v. Salt Lake City Corp., 475 F.2d 29, 30-34 (10th Cir.1973), that court has since questioned the vitality of Anderson in light of the Supreme Court's decision in Stone v. Graham, 449 U.S. 39 (1980). See Summum v. Callaghan, 130 F.3d 906, 913 n.8 (10th Cir. 1997); Summum v. City of Ogden, 297 F.3d 995, 999 n.3 (10th Cir. 2002).
2 FFRF also offered to purchase the land around the Monument, but the City refused the request.
3 Yesterday, counsel for the plaintiffs learned that just this week another fence has been erected around the Monument. The City, apparently, is making an eleventh-hour attempt to inform itself of, and comply with, this Court's decision implementing Freedom From Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000). The City's last-ditch actions do not remedy the constitutional infirmities of the City's conduct concerning the Monument, but the plaintiffs have learned of this last-minute activity too late to fully address its impact in this motion for summary judgment. Accordingly, the plaintiffs will address this new fence in reply, as well as in response to any dispositive motion filed by the defendant. In any case, the plaintiffs are entitled to a declaration that the City's display of the Monument under conditions existing at the time of filing this suit is unconstitutional, and the plaintiffs are entitled, under 42 U.S.C. ¤ 1988, to an award of fees and costs in bringing this action.
Although the City is subject to a continuing obligation under Federal Rule of Civil Procedure 26(e) to supplement its responses to the plaintiffs' discovery requests, the City has not done so concerning the recent activity involving the Monument. For that reason, the plaintiffs may ask the Court for additional time to conduct additional discovery before filing their next brief.
The Freedom From Religion Foundation has asked the 7th Circuit Court of Appeals for an en banc rehearing, after a 3-judge panel of the circuit ruled on April 2 against the Foundation's challenge of a state contract with an overtly proselytizing sectarian organization.
Judge Posner, also writing for Judges Bauer and Ripple, upheld a decision last June by U.S. Dist. Judge Barbara Crabb, for the Western District of Wisconsin, to permit the Wisconsin Department of Corrections (DOC) to send men to Faith Works, in Milwaukee.
The Foundation won its major challenge of direct public funding of Faith Works on January 8, 2002, when Crabb ruled that more than $880,000 in public funds had been granted illegally to start up and run Faith Works, whose mission was to bring "homeless addicts to Christ." Her strong ruling in favor of the Foundation's challenge was the first such ruling in the nation against funding faith-based initiatives, and was considered a major blow to Pres. Bush's faith-based proposals.
Crabb separated out the Foundation's challenge of the DOC contract with Faith Works, involving a much smaller sum of state money. She waited to issue her ruling until after the U.S. Supreme Court had ruled in favor of taxpaid vouchers for religious schools in Cincinnati last summer in the Zellner case.
Faith Works and the State of Wisconsin began arguing that the DOC contract, involving a nonbidding procedure and special waivers dictated by the Governor's office, was tantamount to "vouchers." Bush is now favoring "vouchers" as the vehicle by which taxpayers should fund religious agencies.
Crabb issued what she termed a "close" decision last July in favor of the the state contract, which the Foundation appealed.
Circuit Judge Posner's 7-page ruling against the Foundation contained errors of fact and appeared to be quarreling with an earlier decision by the 7th Circuit, Kerr v. Farrey (1996), which found that Alcoholics Anonymous was a religious treatment and that the State must offer secular alternatives to inmates and wards. Posner wrote, without any documentation, that: "The success of Alcoholics Anonymous is evidence that Christianity can be a valuable element in a program for treating addiction."
Posner argued that the contract was a voucher where "the state has dispensed with the intermediate step by which the recipient of the publicly funded private service hands his voucher to the service provider." The state began officially informing men going on probation or parole that they could object to placement at Faith Works after the Foundation filed its lawsuit. The Foundation also entered into the court records the fact that the DOC did not realize that Faith Works had no Alcohol and Other Drug Abuse-licensed counselors on staff, relying instead on bible reading, "faith-enhanced AA," and a purported goal of hiring its own graduates to become "counselors."
The Foundation pointed out that Faith Works, feeding nearly entirely from public funds, offered a 9-month treatment program, while there was no secular alternative with that comparable length of treatment. Posner concluded:
"It is a misunderstanding of freedom (another paradox, given the name of the principal plaintiff) to suppose that choice is not free when the objects between which the chooser must choose are not equally attractive to him."
The Milwaukee Journal-Sentinel reported after the decision came down that Faith Works had essentially closed its doors last year, when its vast infusions of direct public funding dried up after the Foundation won its initial lawsuit.
The Foundation petitioned for a rehearing before the 7th Circuit on April 16.
Foundation attorney Richard L. Bolton noted in his petition: "The Panel's decision has significant importance because it purports to extend the Supreme Court's voucher analysis in Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002), to a per capita government funding program in which government employees affirmatively recommend that probationers and parolees attend a religiously imbued drug and alcohol treatment program. Per capita funding of such programs, preselected and paid for by the government, is treated as prohibited direct funding of religion in violation of the Establishment Clause, according to Supreme Court precedents, . . .
"The Panel's decision opens the door to direct government contracts with religious service providers as long as the program is funded on a per capita basis. This is an end run around the protections against government endorsement intended by the Supreme Court's private choice/voucher decisions . . . The Panel's decision ventures into uncharted waters . . . "
Posner argued that "endorsement" of religion by government is not a violation of the Establishment Clause in the absence of coercion. "The Panel's decision also misapprehends the Supreme court's requirement that programs of true private choice not be 'skewed' in favor of a religious alternative. Although the religiously funded alternative in this case is three times as long as secular alternatives, the Panel analogizes this difference in benefits as similar to the choice between 'vanilla and chocolate ice cream.' In fact, however, a probationer who chooses a secular program gets 3 months of paid treatment versus 9-12 months of government benefits at the religious alternative. This is more like the choice between one vanilla cone and three chocolate cones. It is a magnitude of difference, in conjunction with the government's recommendation of the religious alternative, that impermissibly skews the choices available to private individuals.
"The Panel's decision 'assumes' that religiously-inbued programming is advantageous, and then concludes that the Establishment Clause applies a different constitutional test for meritorious religious programming. The Panel, for example, takes 'judicial notice' of the benefits of Alcoholics Anonymous, a fact that does not appear in the record.
"The Panel's decision entangles the government in evaluating the merits of religiously imbued programming as the litmus test for whether it can affirmatively recommend the religious program. This is what the Establishment Clause is intended to prohibit, but it is the Pandora's box that the Panel's decision appears to open."
The Foundation petition noted: "a reasonable observer could not help but conclude that the government's recommendation of religious programming is made with the government's endorsement and support, which in this case includes a religiously imbued program that 'encourages the offender to establish a personal relationship with God through the mediation of Jesus Christ.' . . . the Panel's decision would sanction the practice of school officials specifically recommending religious schooling alternatives to parents, as long as the parents are not coerced. Such a conclusion cannot be squared with the reasoning in the Supreme Court's Zelman decision, which emphasized the absence of any government efforts to skew the choices toward religious schools."
The Freedom From Religion Foundation filed a federal lawsuit in April challenging the funding and merger of two Montana state offices with the "Montana Faith-Health Cooperative."
The Foundation and three Montana Foundation members--Edith Paxman, Ron Calvert and James Soular--are suing the Montana Office of Rural Health, its executive director David M. Young, the Montana State University-Bozeman, and the Montana Faith-Health Cooperative. The "faith-health cooperative" is in the same office as the Montana Office of Rural Health and the Montana State University-Bozeman.
Young, who is on the steering committee of the "faith-health cooperative," shares management of the cooperative with the Executive Director of the Montana Association of Churches.
State and federal taxpayers are subsidizing the activities of the faith-health cooperative, the lawsuit charges. The Montana Office of Rural Health, as part of the Montana State University-Bozeman educational website, hosts, copyrights and owns the cooperative's website.
"The mission of the Montana Faith-Health Cooperative is to foster and promote holistic health care, including an emphasis on the spiritual aspect of human beings," the Foundation complaint charges, promoting "the importance and power of faith as part of public health care initiatives."
"The actions of the defendants, Montana Office of Rural Health and David M. Young, are integral to the organization and operations of the Montana Faith-Health Cooperative, including its mission of religious indoctrination."
The Office of Rural Health also engages in other activities that promote religious spirituality and health, including maintenance of a "spirit health" website, through a partnership of the Montana Office of Rural Health, the Montana State University College of Nursing, and the Montana Pastoral Care Association.
The integration of religious spirituality is being promoted as an inherent component of public health delivery models, the Foundation complaint notes.
Using state and federal funds to operate a faith-based organization, "whose religious objective is indivisible from any secular objective," advances, endorses and promotes the establishment of religion in violation of the U.S. Constitution.
"The incorporation of the defendants, Montana Office of Rural Health and David M. Young, into the organization and operation of the Montana Faith-Health Cooperative constitutes governmental approval of the religious content integrated into the activities of that organization.
"The defendants' actions convey a message that religion is favored, preferred and promoted, in contrast to nonbelief, and the mission of the Montana Faith-Health Cooperative is clothed in traditional indicia of government endorsement."
The plaintiffs are compelled to support the establishment, endorsement and advancement of religion through state and federal funding of "programmatic religion indoctrination."
The Foundation is asking for an order enjoining the defendants from continuing to operate, manage or otherwise participate in the Montana Faith-Health Cooperative, or from engaging in any other activities creating the appearance of government endorsement of religion.
Attorney Richard L. Bolton, of Madison, Wis., in cooperation with a Montana firm, is representing the Foundation.