Analyzing a Flawed Court Decision

This is a postmortem of the January decision by the U.S. 7th Circuit Court of Appeals 3-judge panel approving a sale of a small "bite" of public park land to the Fraternal Order of Eagles, to preserve a Ten Commandments monument as the centerpiece of Cameron (City) Park in La Crosse, Wis. The Eagles had given the city the monument in 1965 and their office building is directly across the street from the monument.

The decision ended the Freedom From Religion Foundation's federal lawsuit, filed in 2002, challenging the constitutionality of the decalog in a public park. The Foundation was victorious in forcing the city to divest itself of the bible monument. The sale of land occurred after the lawsuit was filed, and the Foundation went on to contest the "sweetheart deal."

Maureen Freedland was one of 21 local plaintiffs in La Crosse of diverse religious and nonreligious viewpoints.

Maureen Freedland

By Maureen Freedland

People have asked, how could the lawsuit to remove the monument in Cameron Park be overturned on appeal? How could "33 La Crosse area attorneys and one reserve judge" who advised the City Council not to appeal because they couldn't win, possibly be wrong?

Here's the answer: sometimes a court's decision is flawed, and we have to live with it.

Consider the following critical factual determinations that led to this appellate court decision:

The court assumed that the sale to the Eagles complied with Wisconsin state law permitting a sale of land no longer needed for park purposes. When was it factually determined that this particular 22 x 20 piece of land was no longer required for park purposes, or was this just a finding by proclamation? The City's own Park and Recreation Plan states there's a shortage of similar neighborhood parks.

The appeals court states: "The attention of visitors to the Park is not drawn to the monument by it being displayed in a particularly prominent location or setting." Judge Manion added that visitors on the walkway wouldn't even see the inscription, and the nighttime illumination doesn't result in making the monument a significant part of the Park.

Those few folks who might have missed the monument before are certainly assured by the large signs and double gates that they won't miss it now. Contact with the monument is virtually assured when the park is visited.

"[F]rom the time of its dedication in 1965 the monument appears to have taken on a significant local meaning in the wake of the flood. This was not forgotten."

How farfetched! One sole speaker at the monument's dedication, a past president of the Eagles, paid tribute in his oral remarks to the youth who fought the flood, and the newspaper reported the next day that the monument was "dedicated especially to those young people. . . . "

Neither the monument itself nor any surrounding signage indicated that the monument was connected to the 1965 flood--that is, until this litigation led to the City Council in 2002 passing a resolution stating this supposed fact. (Obviously, to scramble for a "secular purpose" to prevent the removal.) Thus it came to be that the city had a supposedly historical reason for keeping the monument in place. That the flood occurred after the city had decided to accept the monument was ignored.

You can't miss the Ten Commandments, now highlighted by fences, in the middle of a city park in La Crosse, Wis.

The court found it unnecessary to subject the sale to particularly careful scrutiny because Cameron Park's setting as a "neighborhood park" isn't linked with the seat of government.

Its use for public assemblies and demonstrations, and its location in a well-traveled downtown area near banks, office buildings and commercial operations, are critical facts that the court dismisses.

The court permits the sale to the Eagles over other buyers because, it says, a "reasonable person" would understand that the purpose in selling to the Eagles rather than anyone else was merely to get the monument back to its original owner. The quite lucky result that it remains in the same location is said to be simply the achievement of a "practical goal" of not having to move it. As the dissent forcefully recognizes, the actions of the city "actually show a stubborn refusal to separate itself from the display of a purely religious monument."

The court is pleased that by allowing the monument to stay in the same place, the Eagles can "continue to maintain" the property. Yet the monument received a needed, major re-etching only after the lawsuit started. Its easy movability was underscored by its removal for several weeks. It is disturbing that the planting of some flowers and the provision of lighting from the next block entitled the Eagles to take a parcel of land apparently large enough for a "private park." One has to wonder if this will entitle other civic-minded groups to make similar claims of ownership.

Consider also that the judge who wrote the opinion was unwilling to find in the Marshfield, Wis. case [an earlier Foundation lawsuit contesting a Jesus statue and "Christ Guide Us On Our Way" sign in the middle of a public park] that religious monuments on public property are even unconstitutional in the first place. In this case he clearly avoids this issue and its effect.

Assignment of a case is by luck of the draw.

"Judicial activism"--of the conservative variety--is apparent in this case.

The decision greatly conflicts with the rulings of other key Establishment Clause cases. Pivotal facts genuinely in dispute were decided by the appellate court without the benefit of trial. The result is a contrived scenario bearing little resemblance to either the history of this religious monument in La Crosse or to the obdurate actions of the defendants to preserve it at any and all costs.

What are some effects of this decision?

A government can more easily circumvent the First Amendment by selling a tiny piece of land, so long as it posts signs or comes up with a justification for an unconstitutional activity.

40 years of the violation of the First Amendment goes uncorrected. Rather than require the city to restore the property to its original condition, the court allows Cameron Park to be cut up.

A city can say its land is no longer needed for park purposes without ever making this factual determination, and it can make a religious object secular just by its own dedication as such.

Certain kinds of public lands are considered more worthy of the First Amendment than others.

Will the City of La Crosse sell a similar piece of land to any other group, or do the Eagles now alone have a privileged position to forward their religious message?

It appears to me that this experience has been a quite terrible example to the youth of our community in how a government can evade the U.S. Constitution to get to its desired result--in this case, to do whatever was necessary to leave the monument exactly where it was all along.

"I am a volunteer attorney representing poverty clients in housing, public benefits, and civil matters. I was recognized as the 1999 Pro Bono Attorney of the Year by the Wisconsin State Bar Association.

In the 1980s, as a young state assistant attorney general in Louisiana, I helped to defend that state's 'Balanced Treatment of Creation Science and Evolution Science' Act that applied to the public schools. The U.S. Supreme Court eventually ruled that it was religion, not science. My interest in church/state issues stems from the history of my parents as Holocaust survivors."