Freedom From Religion Foundation Wins Federal Lawsuit Against Ten Commandments Monument in City Park in La Crosse, Wis.
(MADISON, WI) Federal District Judge Barbara B. Crabb issued a strong 41-page opinion yesterday in favor of the Freedom From Religion Foundation and its 22 local plaintiffs challenging a Ten Commandments monument in a city park in La Crosse, Wis.
The lawsuit revisited a case first filed by the Foundation in 1985 on behalf of two of its La Crosse members, which Judge Crabb had dismissed for lack of standing in 1987.
Her decision yesterday acknowledged the standing of the impressive list of plaintiffs, including Foundation members who are atheists and agnostics, a Catholic man, a Jewish woman, and members of the Unitarian-Universalists. Most of them attested that, despite the inconvenience to them, they avoided Cameron Park and shopping in the area because the presence of the bible edicts on city property caused them distress.
When the Foundation sent a letter threatening to 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."
After the lawsuit was filed last July, the City of La Crosse responded by selling a parcel of the small park to the Fraternal Order of Eagles, who had donated the marker in 1965. Crabb's decision noted that the board refused to consider an offer by the Foundation to buy the plot of land for fair market value.
Wrote Crabb:
"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."
Crabb ruled the presence of the Ten Commandments in the city park before the sale was unconstitutional:
"The context of the monument in this case compels the conclusion that advancement of religion was both the purpose and effect of the monument as it existed before the sale."
She cited the Books v. City of Elkhart case, decided by the 7th Circuit Court of Appeals in 2000, ruling a similar Eagles Ten Commandments monument unconstitutional when displayed in front of an Indiana municipal building.
In a pivotal part of her ruling, Crabb called the sale of part of the park unconstitutional: "there was no reason to sell the land other than to maintain the location of the monument."
She rejected the precedent of an earlier case brought by the Foundation, in which the City of Marshfield, Wis., was permitted to sell and fence off a huge display of Jesus at a public roadside park. Marshfield sold a central bite of the park in response to a lawsuit by the Foundation, which contested the sale as a sham and a "sweetheart deal" since the City took no bids and sold to a group organizing to "save the Jesus statue." Although the 7th Circuit Court of Appeals in 2000 upheld the sale as a constitutional remedy, it agreed with the Foundation that the lack of large fences and disclaimers made it appear that the lot was still city-owned, ordering that barriers and large disclaimers be posted.
"The facts discussed in City of Marshfield are not to be checked off like a laundry list so that following them creates an irrebuttable presumption that a public body has acted with a secular purpose," wrote Crabb.
". . . . a court must look at the entire context of the sale to determine whether the sale demonstrates a preference for religion. . . . It is important to note that this is not a case in which defendant decided to sell an unoccupied portion of the park because it was no longer needed for park purposes and then the new owner made its own choice to erect a religious monument. Rather, 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."
The fact that the City refused offers by a church and even the Eagles Club to buy the monument and move it to private property shows the City was "intent on furthering the monument's message," Crabb wrote.
The judge noted:
"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."
Last year a magistrate refused the Foundation's request 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, but asked that the Foundation 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 find additional supporters.
Among the many area plaintiffs is attorney Maureen Freedland, a Foundation member whose parents survived the Holocaust. Freedland attested that she missed attending a peace rally in Cameron Park because of the monument, has received flak for being part of the lawsuit, and alters her routes to avoid the area. Plaintiff Myrna Peacock, who began speaking out against the monument in the 1980s, has been called a "pinky" and a "commie" for supporting the separation of church and state.
"We thank our 22 La Crosse plaintiffs for standing up to support the First Amendment," said Foundation president Anne Gaylor.
Gaylor noted that the Foundation's principal plaintiff in its original 1985 lawsuit, Phyllis Grams, who took a great deal of harassment and is now deceased, would have been delighted with Crabb's decision:
"It's been a long legal battle, but persistence has paid off. The courts seem to be shifting. We now have recent decisions out of four federal appellate circuits opposing such Ten Commandments entanglements, with only one appeals court recently going in the opposite direction."
Sue Mercier, et.al., and Freedom From Religion Foundation, Inc. v. City of La Crosse, Case No. 02-C-0376-C, was issued in the U.S. District Court for the Western District of Wisconsin.