This is the dissent in Sue Mercier et al, v. Fraternal Order of Eagles & City of La Crosse, decided on Jan. 3, 2005, by the U.S. Court of Appeals for the Seventh Circuit.
Bauer, Circuit Judge. I respectfully dissent.
If one accepts the premise that, by its present action, the authorities of the City of La Crosse have effectively disassociated themselves and the City from an endorsement of religion by sponsoring a monument of The Ten Commandments, the majority opinion is hard to quarrel with. But I believe that the District Court had it right; the actions of the City actually show a stubborn refusal to separate itself from the display of a purely religious monument. Having created a problem by the original act of permitting a monument of The Ten Commandments to be displayed on public property with what any observer would have to conclude was an endorsement of the message of the commandments, the City elected a solution that I think borders on a fraud.
I am aware of the fact, set out carefully in the majority opinion, that a disclaimer has been set next to the monument which remains exactly where it was originally placed on what was unquestionably public property, surrounded by public property, and for all intents and purposes is still public property. I am also aware that a transfer of a tiny share of the public domain to the Eagles was recorded and, if a passerby had the time and inclination, he or she could consult the official records of the Recorder of Deeds to verify this gesture. Moreover, as the majority opinion points out, a disclaimer sets out that the City is not endorsing anything. The disclaimer seems to me to be taken from a scene in the movie “The Wizard of Oz” in which the phony wizard, whose fraud has been exposed, directs the onlookers to “pay no attention to that man behind the curtain;” a disclaimer that is no more or less effective than the disclaimer at the monument. It too is an obvious sham.
The admonition of the Constitution that creates the separation of church and state forbids any government entity from endorsing, or seeming to endorse, religion but does not at all prevent individual members who make up a government entity from practicing or loudly announcing their deep religious convictions. They can place displays on their private property, put religious symbols on the bumper stickers of their cars, wear religious symbols on their clothing and even, by living up to the admonitions of the commandments in their personal and political lives show, by their example, their deep commitment to the religion of their choice. What they cannot do is, by word or action, spend public money endorsing or seeming to endorse on behalf of the government agency they represent, an endorsement of any religion. The monument belongs on what is obviously private property or a church setting. It does not belong where it is.
And, as I recall the story, when asked whether the law of God or the law of man was law to follow, the answer by the founder of Christianity was, “Render unto Caesar the things that are Caesar’s and to God the things that are God’s.” Neither God nor religion requires an endorsement from Government–nor does the law permit it.
I would affirm the finding and order of the district court.
