Constitutional Law

Federal magistrate: Ill. atheist's lawsuit should be tossed

By By The Associated Press

ST. LOUIS ? A federal magistrate is recommending the court reject an atheist's challenge of a state grant given to help repair an 11-story Christian landmark in southern Illinois, ruling the state's economic-development agency has discretion in how it doles out its money.

Rob Sherman's lawsuit asked the court to order caretakers of the Bald Knob Cross of Peace to give back a $20,000 grant received in 2008, claiming the handout from a $5 million pot of money that the Illinois General Assembly channeled to the state's Department of Commerce and Economic Opportunity was unconstitutional.

But U.S. Magistrate Judge David Bernthal, in a recommendation issued Dec. 10, sided with the state and the landmark's overseers, finding the grant was made by the state's executive branch and was not a designated legislative "earmark" as Sherman had alleged.

"Finding otherwise in this circumstance would interpose the federal courts as virtually continuing monitors of the wisdom and soundness' of state fiscal administration," Bernthal wrote. "Additionally, such judicial oversight of executive branch activities raises serious separation of power concerns."

Sherman originally filed his lawsuit in August in Springfield, Ill., arguing efforts to repair the cross using state money "has the primary effect of advancing a particular religious sect, namely Christianity."

At the judge's invitation, he later added to his argument and said that because the grant was a legislative earmark ? not a discretionary allocation from the executive branch ? that funneled money to a religious site, it also violated the U.S. Constitution's First Amendment prohibition against the establishment of religion.

Yesterday, Sherman said he would continue fighting what he called the "legislative trick," firm in his belief that "we have the facts and the law and the Constitution on our side."

"The real deal is they (the lawmakers) weren't giving the DCEO money to spend the way they saw fit. The General Assembly sent them a list (of grant recipients including the cross) under separate cover," added Sherman, whose legal exploits include successfully suing to overturn an Illinois law requiring a daily "moment of silence" in that state's public schools.

Bernthal has given the state and Friends of the Cross until Jan. 6 to respond to Sherman's recommendation that the judge reconsider. As of yesterday, none of those sued by Sherman had filed such a reply.

Steve McKeown, a southern Illinois pastor who heads the Bald Knob Cross of Peace Inc., which operates the landmark, said he was unaware of Bernthal's recommendation until learning of it yesterday. The news left him jubilant.

"I'm pleased the court saw that the conflict Mr. Sherman had didn't have any kind of traction. I certainly appreciate that," McKeown said, believing Sherman's beef isn't with the grant process but with the religious nature of the landmark. "Those attempting to sterilize the United States of America of all things Christian have lost another battle in this fight."

The cross, about 130 miles southeast of St. Louis, was built in large measure with area farmers' profits from selling pigs. It has been a fixture on the 1,025-foot-high Bald Knob Mountain for a half century, standing sentry over forests and the region's orchards and burgeoning wine country. Easter services have been held on the mountain since 1937.

Over the decades, the cross and its porcelain tiles fell into disrepair, prompting its caretakers' bid to raise funds for a half-million-dollar restoration that's nearly complete.

Friends of the Cross, the fundraising arm Sherman sued, has raised more than $400,000 since that group's inception some three years ago, eclipsing its goal by $100,000.

Full post as published by First Amendment Center on December 21, 2010 (boomark / email).