Foundation Wins La Crosse Decalog Lawsuit (Again)

Federal District Judge Barbara B. Crabb once again ruled in favor of a challenge of a Ten Commandments monument in a city park by the Freedom From Religion Foundation and its 22 plaintiffs in La Crosse, Wis. Crabb issued a thorough, 47-page opinion on Feb. 3–her second decision in six months upholding the Foundation’s challenge.

Both defendants–the City of La Crosse and the Fraternal Order of Eagles, which are represented by Rev. Pat Robertson’s American Center for Law and Justice–have already indicated they will appeal the ruling to the 7th Circuit Court of Appeals in Chicago.

“We are sorry to see Pat Robertson apparently calling the shots in La Crosse,” said Foundation president Anne Gaylor, of the Eagles’ announced intent to appeal.

The City Council voted 13-2 to appeal on Feb. 12. Mayor John Medinger vetoed that action on Feb. 16. The veto as overriden by an 11-3 vote on Feb. 25, with the minimum number needed for an override.

When the Foundation filed suit in 2001, a magistrate denied the Foundation’s request to protect the confidentiality of its two local plaintiffs. When one of the plaintiffs died, leaving only widow Sue Mercier as the sole complainant, 21 other La Crosse citizens stepped forward to join her, in a dramatic show of support. The plaintiffs represent a diversity of religious and nonreligious viewpoints: Catholic, Jewish, Unitarian, atheist and agnostic.

In response to the lawsuit, the City of La Crosse initiated an offer to sell a tiny parcel of Cameron Park to the Fraternal Order of Eagles, which had donated the Ten Commandments marker in the 1960s. Crabb called the sale unconstitutional in a strong 41-page ruling in July 2003.

The Fraternal Order of the Eagles subsequently intervened in the case, contending it was a violation of due process to invalidate the sale without giving the Eagles an opportunity to be heard. Crabb put her July decision on hold in order to hear the Eagles’ arguments.

The legal delay seemed to fortify Crabb’s original findings. In her February 2004 ruling, she wrote:

“The sale of the property did not cure the establishment clause violation but only shifted it.” La Crosse gave the Eagles “permanent, preferential access to display the religious speech on land that is surrounded by citywide property.”

Crabb rejected the rationale that there was a “secular purpose” for erecting the Ten Commandments monument, ostensibly to commemorate volunteers fighting a flood. “The City accepted the monument from the Order [of Eagles] before the flood even occurred,” she wrote.

“It borders on preposterous to argue that the government can avoid an establishment clause violation by ‘dedicating’ a religious object to a nonreligious group. Adopting such a view would permit municipalities to erect crosses and build churches on public property throughout the city so long as it could think of a new group to which it could dedicate each one,” Crabb added.

Crabb carefully documented how the city rejected an offer by the Eagles to take back the monument. The city similarly rejected an offer by an Episcopalian church to put the religious display on church grounds, and outright ignored the Foundation’s request to bid on the land.

“To see how the City’s sale to the Order demonstrates a preference for a Judeo-Christian viewpoint, one need only consider a slight variation on the facts of this case. Suppose that the city were sponsoring a ‘free speech’ day in Cameron Park. Although all citizens could attend the event, the city would allow only those expressing Christian religious principles to speak. When other members of the community objected to the preferential treatment, the City did not open up the event to allow other groups to speak or cancel the event altogether. Instead, the city sold a platform in the park and the land directly underneath it to a group that it knew would talk about Christian teachings. In an effort to avoid litigation, the city put up a sign disclaiming any endorsement of Christian views. . . .”

Crabb noted that the willingness to “carve up a public park to insure that the symbol does not have to be moved” actually “exacerbates the violation.”

The addition of “arguably degrading fences and disclaimers” also did not “cure” the violation, Crabb maintained.

“No matter how many signs the City posts, its endorsement is still apparent from the privileged space it has provided the private speaker.”

She added that “it is almost farcical to say that the 20’x22′ parcel is a separate ‘park,’ . . . it is impossible to defeat the impression that the monument is still part of the City’s property.”

Proving the religious intent of the city was the June 2001 Common Council resolution, resolving that the monument was so important to the city that it should keep the Ten Commandments “in its present location by any and all means available to the City.” Also showing its religious purpose was “its rejection of even the Order’s offer to move the monument to another location.”

This is the second lawsuit by the Freedom From Religion Foundation challenging the La Crosse Ten Commandments monument. The first suit, which sparked heated controversy, was brought in 1985. Octogenarian schoolteacher and Foundation member Phyllis Grams was the local plaintiff. The case was lost on a technicality in Judge Crabb’s court.

Noting the “long and somewhat tortuous history” of the dispute, Crabb pointed out “the City refused to take any action for more than 15 years after the Foundation first requested that the monument be moved.”

Her order invalidates the sale and requires that La Crosse remove the monument from Cameron Park.

“We deeply appreciate our 22 plaintiffs in La Crosse for standing up for the Establishment Clause in this controversial case,” said Gaylor. “We note with pleasure the support for separation of church and state demonstrated by many others in the community, including the mayor and some religious leaders.”

The La Crosse Tribune has editorialized against appealing, saying: “Let’s cut our losses and move the monument to a more prominent but private location.”

The usual religious hysteria greeted the latest ruling. One of many letters on the subject published in the Tribune insisted that “the Freedom From Religion Foundation is part of the Antichrist that is threatening our very existence.”

Sue Mercier et al v. City of La Crosse, 02-C-376-C.

Freedom From Religion Foundation