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
WISCONSIN
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.
BACKGROUND
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
June 1965
Id.
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. 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.
Id.3
ARGUMENT
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.
Id.
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:
Private Park
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.
CONCLUSION
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.
