Jesus statue still raises constitutional concerns for Wisconsin city

Monday, February 7, 2000

7th District Co...
7th U.S. Circuit Court of Appeals in Chicago has ruled that this statue of Jesus Christ, shown in recent file photo in Marshfield, Wis., city park, violates church-state separation.

A federal appeals court has found that a Wisconsin city has not taken enough steps to distance itself from a piece of property that contains a towering statue of Jesus.

In 1998 the Wisconsin-based Freedom From Religion Foundation sued Marshfield city officials in federal court, demanding the city remove a 15-foot, white marble statue of Jesus from the city’s park. The statue, which faces the main thoroughfare into Marshfield, rests atop a base bearing the inscription in 12-inch block letters, “Christ Guide Us On Our Way.”

After the Freedom From Religion Foundation sued (a member argued in the complaint that he had to avoid using the park because of the statue’s presence), the city placed a sign disclaiming any city connection to the statue and sold the statue and a surrounding portion of land to a private entity — the Henry Praschak Memorial Fund. In December 1998 the city argued in court that it did not provide maintenance or electrical services to the fund’s parcel and therefore the lawsuit was moot. In early 1999, U.S. District Judge John C. Shabaz ruled that the city no longer owned the statue and dismissed the lawsuit.

The Freedom From Religion Foundation appealed to the 7th U.S. Circuit Court of Appeals arguing that the city’s land sale was a sham to avoid legal problems and that reasonable observers would still see the towering statue’s location as an unconstitutional government endorsement of religion.

On Feb. 4, a three-judge panel of the 7th Circuit unanimously ruled that although the city’s land sale was permissible, the presence of the statue on land still closely connected to the city park did pose separation of church and state problems.

“Taking into account the unique facts and circumstances as they would affect the reasonable person, we find that the presence of the statue would create the perception of government endorsement in a reasonable observer,” Judge Michael S. Kanne wrote for the court in Freedom From Religion Foundation v. City of Marshfield.

According to the court, the disclaimer has not sufficiently distanced the city from a large religious symbol that is surrounded by public land.

“Since its creation in 1964, the park has expressed only one message, which is the religious message conveyed by the statue,” Kanne wrote. “The park was created to display the statue, and the City presents no evidence that other groups have ever used the park to present alternative messages. The current physical state of park also leads a reasonable person to conclude that the statue is a part of the public park and that the government, rather than a private entity, endorses religion. As we have noted, Fund land is visually indistinguishable from City land, especially when viewed from Highway 13.”

The 7th Circuit remanded the case back to the district court with an example of how to remedy the city’s continuing establishment-clause problem.

“Should the City (on City property) construct some defining structure, such as a permanent gated fence or wall, to separate City property from Fund property accompanied by a clearly visible disclaimer, on City property, we doubt that a reasonable person would confuse speech made on Fund property with expressive endorsement made by the City.”

Anne Nicol Gaylor, a founder and president of the Freedom From Religion Foundation, said she was generally pleased with the 7th Circuit’s decision and would wait to see how the lower court handled the situation.

“The court made it clear that the reasonable observer could not look at the park and separate the private area with the religious statue from the public park and suggested that a wall or some significant barrier was needed to correct this abuse,” Gaylor said. “We, of course, would have loved for the court to have ruled the sale a sham — I mean the city was turning itself inside-out to find a religious group to buy the property.”

Frank Manion, a senior attorney for the American Center for Law and Justice, who is representing the city in the lawsuit, said he was frustrated with the court’s finding that an establishment-clause problem remained even though the statue is owned by a private group.

“The city just wants this problem to go away without having to remove the 15-foot structure,” Manion said. “Here the city believed it had done everything possible and still the court determines there may be some person out there who may see the statue as an establishment-clause problem.”

Manion said he thought the city would be willing to put a gated fence up and a more “explicit” disclaimer about the statue in efforts to end the litigation.