Thanks to NRO’s "The Corner," I learned that the 7th Circuit Court of Appeals had issued this decision (pdf file). The case involved the sale of public land containing a Ten Commandments monument to the "Aerie" of the Fraternal Order of Eagles that had donated the monument in the first place. Here’s Shannen Coffin’s summary of the court’s opinion:
The opinion...holds that even if the original installation of the monument (which was erected in honor of those who saved the city from a flood) violated the constitution, the sale of the land cured the supposed violation. So here’s the obvious solution to the problem -- privatization of public land!
The plaintiffs in the original case were ginned up by our old friends, the ever-industrious Freedom from Religion Foundation, which wasn’t happy with the City of La Crosse’s extensive efforts to disassociate itself from any conceivable message of endorsement, which included the erection of a fence separating the land on which the monument stood from the larger park and copious signage. Here’s some colorful language from the dissent:
I am aware of the fact...that a disclaimer has been set next to the monument which remains exactly where it was originally placed on what was unquestionably public property, surrounded by public property, and ofr all intents and purposes is still public property.... Moreover...a disclaimer sets out that the City is not endorsing anything. 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 nor more or less effective than the disclaimer at the monument. It too is an obvious sham.
It’s unfortunate that things have come to this pass--that a city government has to go to great lengths to avoid even the appearance of endorsing the Ten Commandments, that judges have to engage in considerations more appropriate to landscape architects (read the opinion; you’ll see what I mean), and that all this still isn’t good enough for some.
Nevertheless, it’s satisfying to see the Freedom From Religion Foundation lose one.
Update: This article, in discussing a dispute over a Ten Commandments monument in Cumberland, Maryland, offers some interesting historical background regarding the interest of the Fraternal Order of Eagles in the monuments. Cecil B. Demille also figures in the story. Fascinating.
The city is certainly endorsing something - something that the Declaration of Independence, Washington’s Farewell Address, the Virginia Declaration of Rights, and the Bill of Rights recognizes - that the source of the natural moral law and of our natural rights comes from God. And, that the self-governing republican American people must be moral and virtuous if the republic is to endure. It is also recognizing America’s Western and Judeo-Christian heritage and traditions handed down to us from our forefathers over the millenia. The Court and Congress have sculptures recognizing our religious and moral and legal traditions. Can anyone seriously maintain that the Founders wanted to prevent such a thing when they ratified the words, "CONGRESS shall make no LAW respecting an ESTABLISHMENT of religion"? This is the kind of thing that makes ordinary Americans shake their heads and wonder what is becoming of our country. Does a statue of the Ten Commandments violate anyone’s rights? Turn away in disgust if it offends you the same way I skip over Howard Stern.
I have read the complete dissent, and I think it is ridiculous. Whatever requirements the First Amendment may or may not impose on public land, it clearly does not apply to privately-owned property that was, at some point in the past, owned by the government. The dissent reads into the First Amendment a level of hostility to religion that is clearly impermissible, and apparently also fails to understand the very simple concept of "private property."
I have not read the whole thing, and I agree with Moe’s point. We forget that private actors are not limited by the Bill of Rights, which is, or at least before the Lochner decision, aimed at limiting the intrusions of the FEDERAL government. When Lincoln held days of fasting and prayer, when Washington did countless actions to promote religion and virtue in the army, when Jefferson attended religious services in the nation’s capitol, etc., no official church was established, but rather a free people engaged in their free exercise to worship God how they pleased. This Freedom From Religion (where is that in the Constitution,
Bill of Rights, or Founding???) group
not only wants to violate the free exercise clause but apparently has little regard for the proper balance of federalism as well. Maybe they want to establish a nationally sovereign and atheistic state. They can build upon the ruins of the French Revolution and Soviet Union as they build their empire of reason.
Sorry, you guys got it all wrong.
The Ten Commandments are a religious icon. They include the religious directives regarding only one God, practice the Sabbath, no graven images, and not to use the name of the Lord in vain. They were given, per the Old Testament to Moses at Mt. Sinai. The courts have recognized their religious basis.
The Ten Commandments were given to the City of La Crosse months before it had started raining in that now famous flood. A single reference to the flood workers does not make the Ten Commandments a secular statue.
The City of La Crosse and the Courts recognized that the Monument shouldn’t be where it was in a public park. They avoided the problem by selling the land under the monument vis a vis the Marshfield Decision of the Jesus statue. They slapped up a couple of fences and several signs pointing out that this now was not city property.
Since when is the proper fashion of handling a city transgression of the First Amendment to SELL the violation? Is THAT what the court intended? Isn’t it more appropriate to restore the Park to its proper status pre-statue and return the Monument to the Eagles?
The state of Wisconsin requires municipalities to determine that there was no NEED for the public property prior to any sale of park land. This was never done. There simply was a declaration by the city itself that the land was no longer needed. There was no Committee, no panel, no investigation NADA.
The whole thing was a sham, trying to find a loophole to avoid the Constitutional protections of the First Amendment.
Would it have been o.k. for the city of Montgomery, Alabama, when faced with Rosa Parks asking to sit up front to simply lease all of the front seats on the bus to the Ku Klux Klan and then kindly apologize to Ms. Parks, and let her know that even if the City wanted to let her sit up there, they were sorry because they no longer "owned" those seats?
Would it have been o.k. for Governor Wallace when faced with the integration of the University of Alabama, to simply ask the state government to SELL the University to avoid integration.
Obviously not.
So for the time being, the "Activist"
conservative judges have had their day and have made a mess of any kind of honest judicial assessment of the La Crosse monument situation. And the citizens of La Crosse now have a park with a monument with multiple fences surrounding it.