Constitutional Law

Federal judge tosses atheist's challenge of funding for Ill. cross

By By The Associated Press

ST. LOUIS — A federal judge on yesterday tossed a Chicago-area atheist?s lawsuit that sought to force the return of a state grant that helped pay for restoration of an 11-story cross that is considered a landmark in southern Illinois.

The ruling by U.S. District Judge Michael McCuskey, central Illinois? chief federal jurist, sided with the state and the caretakers of the Bald Knob Cross of Peace near Alto Pass. He upheld the recommendation of federal magistrate David Bernthal, who last week rejected Rob Sherman?s argument that the $20,000 grant was unconstitutional.

Bernthal ruled that the grant was made by the state?s executive branch and was not a designated legislative ?earmark? as Sherman had alleged. Bernthal also found that the state?s economic-development agency has discretion in how it doles out its money.

Bernthal first made his recommendation in December, then reaffirmed the decision late last week after considering additional arguments from Sherman.

Sherman, whose legal exploits have included successfully suing to overturn an Illinois law requiring a daily ?moment of silence? in that state?s public schools, pledged to take the matter to the Chicago-based 7th U.S. Circuit Court of Appeals.

?The decision ? reminds me of an old ?Three Stooges? movie where one of the stooges says, ?I can?t see, I can?t see.? Another stooge says, ?Why not?,? and the other replies, ?I?ve got my eyes closed,?? Sherman said after learning of McCuskey?s ruling.

Sherman said he wasn?t surprised that McCuskey didn?t detail his decision in the ruling, saying ?the facts of the case completely contradict what the magistrate judge and the district judge are saying.?

A man who answered the phone at the Bald Knob Cross said no one was available at that time to discuss McCuskey?s ruling.

Sherman sued last August, arguing that efforts to repair the cross using the $20,000 grant have ?the primary effect of advancing a particular religious sect, namely Christianity.? He noted that the money came from a $5 million pot of money that the state Legislature channeled to the Illinois Department of Commerce and Economic Opportunity.

Sherman insisted that the grant was a legislative earmark — not a discretionary allocation from the executive branch — and therefore funneled state money to a religious site in violation of the First Amendment?s prohibition against the establishment of religion.

The cross, about 130 miles southeast of St. Louis, was built largely thanks to local farmers? profits from selling pigs. It has been a fixture on the 1,025-foot-high Bald Knob Mountain for a half century, standing over forests and the region?s orchards and burgeoning wine country.

Over the decades, the cross and its porcelain tiles fell into disrepair, prompting its caretakers? feverish bid to raise funds for a restoration that?s nearly complete.

The fundraising arm of the project, Friends of the Cross, which 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 February 08, 2011 (boomark / email).