7th Circuit OKs sale of commandments monument

Wednesday, January 5, 2005

MADISON, Wis. — A federal appeals court ruled the city of La Crosse’s decision to sell a Ten Commandments monument and the land around it to a private service group was constitutional, but the group seeking the monument’s removal called the sale a sham and said it would appeal.

A split three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled Jan. 3 that the sale did not violate the separation of church and state.

The decision in Mercier v. Fraternal Order of Eagles overturned a federal judge in Madison who had ruled the sale was meant to sidestep constitutional issues and ordered the monument’s removal from land that was formerly part of a downtown city park.

The appeals court majority stressed similar efforts to keep religious monuments on public lands must be reviewed on a case-by-case basis. Still, it found the La Crosse arrangement was proper.

Annie Laurie Gaylor of the Freedom From Religion Foundation, which joined two La Crosse residents in a 2002 suit seeking to remove the monument, said yesterday that they would likely ask the full appeals court to review the decision. The Madison-based foundation argued the display violated the separation of church and state.

“The reason for the monument is religious,” Gaylor said. “This is a sham sale.”

To defuse the group’s suit, the city sold a 22-by-20-foot plot of land in the public park to the Fraternal Order of Eagles, which originally donated the monument to the city in 1965. Both the Eagles and the city have erected fences around the monument indicating it is on private property and disclaiming city endorsement of religion.

The 7th Circuit panel found the sale was not made to advance religion and that the city’s decision to sell the land to the Eagles made practical sense. The monument now sits across the street from the group’s La Crosse office, and Eagles members will continue to maintain the site.

The American Center for Law and Justice, a law firm founded by the Rev. Pat Robertson that is representing the club, has fought several attempts to remove such monuments and is involved in two appeals now pending before the U.S. Supreme Court.

Jay Sekulow, ACLJ’s chief counsel, said the U.S. Supreme Court’s decision could dictate when such displays are allowable. Still, he said the appeals court opinion set parameters that other communities could follow.

“This could be a new alternative way to maintain these historic monuments in these town squares,” Sekulow said. “The 7th Circuit gave that a constitutional stamp of approval.”

The appeals panel used a prior decision in a Marshfield case in reaching its conclusion. In that case, Freedom From Religion Foundation v. Marshfield, the city sold a 15-foot-tall statute of Jesus Christ and the land around it in a public park to a group of residents. The city also placed a disclaimer near the statute state the location of the monument was not an endorsement of religion.

Still, the appeals panel pointed out that simply selling the land around a religious monument on public property does not make it constitutional. It noted the land around the monument in La Crosse was sold for market value and complied with state law regarding the sale of municipal land.

The judges also noted the location of the monument was significant. It is not near a government building, and residents do not have to pass by it to conduct public business.

“La Crosse is not selling property inextricably linked with the seat of government. Obviously, a city could not sell space under the dome of its City Hall or the sidewalk in front of the courthouse steps,” Judge Daniel A. Manion wrote for the majority. “Such sale would be, on its face, a sham.”

Judge William J. Bauer, however, dissented, saying that the sale of the monument showed the city’s “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,” Bauer wrote.

Bauer also criticized the disclaimer the city posted disassociating itself from the monument. “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.”

La Crosse Mayor John Medinger said it was clear the appeals court would have found the display unconstitutional if the city had not sold the land and the monument to the Eagles and taken steps to cordon it off from public property.

Still, he said the arrangement has not made everyone happy. Those who wanted the monument removed completely are disappointed, and the display looks like the “Ten Commandments in jail” because it’s surrounded by two fences, he said.

“Hopefully now this will end it, and we can stop fighting with each other,” he said.

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