A couple of years ago, atheist Rob Sherman filed a lawsuit because Illinois legislators were giving $20,000 to the Friends of the Cross organization “for the purchase and installation of new exterior panels for the cross to replace existing panels that are missing, worn or rusted.”
That’s the long way of saying the state was giving money to restore this 11-story monstrosity:
That’s the Bald Knob Cross in Alto Pass, Illinois.
Sherman filed the lawsuit (PDF) in August, 2010. The basis of his argument was that this was government endorsement of Christianity and it violated the First Amendment’s Establishment Clause. He was suing as a taxpayer.
A district court rejected the lawsuit — not on the merits of church/state separation, but because they said Sherman had no business suing. They said taxpayers can only challenge “congressional enactments,” not discretionary spending. And since the $20,000 came at the request of one State Senator, Democrat Gary Forby, as part of a larger $5,000,000 appropriation bill, it was “discretionary”… so Sherman had no standing to challenge it. (Got all that?)
Sherman appealed the ruling. He said he did have a right to sue.
The appeal was heard in November, 2011.
And yesterday, a decision was issued (PDF) by the U.S. Court of Appeals for the 7th Circuit. In short: they want Rob Sherman to go away.
The district court correctly assessed Sherman’s right to sue. Whatever may be lurking in the background of this appropriations legislation, the $20,000 grant to Friends was not the result of legislative action; rather, it can be traced at most to the initiative of a single legislator. The ultimate pool of $5 million was in the hands of an executive agency, which was formally responsible for the decision to hand out the $20,000 to Friends.
The complaint concedes that the General Assembly appropriated $5 million “to be used for grant s administered by the [Department]” and then goes on simply to assert that Friends was specifically designated to receive money by the General Assembly. This assertion, however, is not tethered to any legislative text. Instead, Sherman wants us to fill the gap between the general lump-sum appropriation and the specific FOTC grant.
Ironically, it was a lawsuit that FFRF brought to the Supreme Court — and lost — that was used to prevent Sherman from suing in this case.
This leaves Sherman’s side with only a couple of long-shot options — and it’s almost certain those other options will say the same thing. So the case is over.
To add insult to injury, the Appeals Court said that, even if Sherman had standing, they wouldn’t have ruled in his favor:
Even if he did have standing, Sherman may seek only an injunction against the state prohibiting the allegedly unconstitutional disbursement, but it is too late for this relief. Illinois has already disbursed the $20,000 to Friends and Sherman has no right to insist that they pay it back.
I asked Rob Sherman what he thought of the ruling and he was kind enough to offer this statement via email:
Challenging the Grant to rebuild the giant Christian cross with public funds was exactly the right thing to do.
The Appellate Court said that they are bound by previous Supreme Court decisions which say that citizens have no legal recourse when the government violates your constitutional rights. However, as a result of my challenge to this blatantly unconstitutional Grant, the Illinois General Assembly is far less likely to make future unconstitutional grants to advance religion with atheist money.
Let’s hope that’s true. Right now, it sounds like the Appeals Court just gave Christian groups a massive gift — a legal loophole to procure money for their religious pet projects as long as they have a state legislator on their side able to extract the amount from a larger appropriation bill.