(MADISON, WI) Federal District Judge Barbara B. Crabb issued a 47-page opinion today, her second decision in six months favoring the challenge by the Freedom From Religion Foundation and its 22 plaintiffs in La Crosse, Wis., of a Ten Commandments monument in a city park there.
After the Foundation filed suit in 2001, the City of La Crosse initiated an offer to sell a tiny parcel of the small park to the Fraternal Order of Eagles, who had donated the marker. Crabb called the sale unconstitutional in a 41-page ruling in July, 2003.
The Fraternal Order of the Eagles, represented by Pat Robertson's American Center for Law and Justice, intervened in the case after the July decision. The Eagles contended it was a violation of due process to invalidate the sale of the land under the Ten Commandments without giving the Eagles an opportunity to be heard.
After hearing the ACLJ, Crabb fortified her original findings in her second ruling:
"The sale of the property did not cure the establishment clause violation but only shifted it." She said La Crosse gave the Eagles "permanent, preferential access to display the religious speech on land that is surrounded by citywide property."
She again rejected the rationale that the Ten Commandments had a secular purpose to commemorate volunteers fighting a flood." The City accepted the monument from the Order [of Eagles] before the flood even occurred."
"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 wrote.
She documented how the city had rejected an offer by the Eagles to take back the monument, had similarly rejected such an offer from an Episcopalian church, and had ignored the Foundation's offer 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 all together. 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. . . .
"There are many ways the government can promote a religious viewpoint besides giving its adherents free property," Crabb added. "She 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 22' x 20' parcel is a separate 'park,' . . . it is impossible to defeat the impression that the monument is still part of the City's property."
Showing the religious intent of the city was the Common Council resolution in June 2001 saying 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."
Noting the "long and somewhat tortuous history" of the dispute--which began with the Foundation's first legal challenge in 1985, which was lost on a technicality before Judge Crabb's court--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 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.
"Once again, we deeply appreciate our 22 diverse plaintiffs in La Crosse for standing up for the Establishment Clause in this controversial case," added Gaylor.
Sue Mercier et al v. City of La Crosse, 02-C-376-C