La Crosse Commandments Must Move (August 2003)

Federal District Judge Barbara B. Crabb of Madison, Wis., issued a resounding 41-page opinion on July 14 in favor of the Freedom From Religion Foundation and 22 local plaintiffs, who are challenging a Ten Commandments monument in a city park in La Crosse, Wis.

To read a major excerpt of the ruling, go here.

The City of La Crosse is debating whether to appeal the ruling, with emotions running high. Mayor John Medinger opposes an appeal. The City has until mid-August to decide whether to appeal. Foundation counsel Jim Peterson described Crabb as one of the least overturned federal judges in the circuit.

The lawsuit revisited a case first filed by the Foundation in 1985 on behalf of its La Crosse member Phyllis Grams, now deceased, which Judge Crabb dismissed for lack of standing in 1987.

Freedom From Religion Foundation staffer Dan Barker stands in front of the awkwardly-fenced Ten Commandments in Cameron Park, La Crosse, Wis.

Crabb’s current decision acknowledged the standing of the impressive list of plaintiffs, including atheist and agnostic Foundation members, a Catholic man, Jewish women, and some Unitarian-Universalists. Most attested that they felt it necessary to avoid Cameron Park and shopping in the area because the presence of the bible edicts on city property causes them distress.

When the Foundation sent a letter last year warning that it would sue the City if it did not remove the monument, the council passed a resolution to keep the marker “in its present location by any and all means available to the City,” including working with religious-right organizations.

After the Foundation filed its lawsuit last July, the City of La Crosse responded by selling a tiny parcel of the small park to the Fraternal Order of Eagles, which had originally donated the tombstone-like monument in 1965. The board refused to consider an offer by the Foundation to buy the plot of land for fair market value, or the Eagles’ original offer to house the monument on their own property across the street from the park. Offers by local churches to host the monument on their private property were also refused.

“The law of this circuit compels a conclusion that defendant violated the establishment clause when it displayed a monument of the Ten Commandments on public property without a secular purpose for doing so. Furthermore, defendant’s sale of a minuscule portion of the park to the Eagles in order to preserve the presence of the monument proves rather than extinguishes defendant’s endorsement of the monument’s religious message,” wrote Crabb.

In a pivotal finding, Crabb declared the sale of part of the park to be unconstitutional, concluding “there was no reason to sell the land other than to maintain the location of the monument.”

“. . . a court must look at the entire context of the sale to determine whether the sale demonstrates a preference for religion. . . . a defendant sold a very small parcel of land in the middle of a park to a pre-determined buyer for the purpose of preserving one religious message in the park.”

“Neutrality means more than just changing the name on a deed . . . Under defendant’s view of the law, [Alabama] Chief Justice Moore [who just lost a similar case before the 11th Circuit Court of Appeals] would be permitted to display the Ten Commandments in his courtroom so long as he could convince the state to sell a tiny portion of the courthouse to a private party and erect a disclaiming sign.”

“. . . it is respect for religion, not hostility toward it, that is the animating principle behind the establishment clause. The First Amendment guarantees persons of all faiths that the government will treat them with equal concern and respect. Individuals must feel free to choose their own paths in their search for ultimate meaning. By prohibiting the government from favoring those who believe over those who do not, the establishment clause helps protect the rights of Christians, Jews, Buddhists, agnostics, Muslims and atheists.”

A magistrate refused the Foundation’s request last year to protect the confidentiality of the lawsuit’s initial two plaintiffs, a married couple. When her husband died unexpectedly, remaining plaintiff Sue Mercier agreed to be named publicly as a plaintiff, if the Foundation could find additional plaintiffs so she would not be alone in the community. In the lawsuit’s most dramatic moment, an outpouring of sympathetic offers came into the Foundation office. Foundation member Hank Zumach, who signed up as a plaintiff, spearheaded a campaign to recruit additional plaintiffs.

“We gratefully acknowledge and thank our 22 La Crosse plaintiffs for standing up to support the First Amendment in this small community,” said Foundation president Anne Gaylor.

Although headlines and letters to the editor in the La Crosse Tribune have been dominated by news of the court victory, most plaintiffs say they have taken little flak. One of the plaintiffs received two threatening phone calls. Another received some on-the-job harassment after the lawsuit was filed, which was stopped by supervisors.

The Foundation office has received some predictably unfriendly emails and phone calls, and its sidewalks were chalked with religious graffiti (see photo below) the day after the opinion was handed down. The Tribune printed a letter from the wife of a local police officer about “our annoying problem with the Freedom From Religion pests,” saying others should “help squash those pesky insects.”

Some local plaintiffs told the Foundation they had acquaintances come forward after the lawsuit was filed, actually expressing disappointment that they were not part of the lawsuit. A “save the Ten Commandments” lawn sign campaign had lost steam, until the ruling was handed down.

Freedom From Religion Foundation