U.S. Appeals Court Rules That It Was Perfectly Fine for Illinois Politician to Give $20,000 to Christian Group June 5, 2012

U.S. Appeals Court Rules That It Was Perfectly Fine for Illinois Politician to Give $20,000 to Christian Group

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.

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  • Artskibeach

    he should now request $20k for an atheist sign that says, “your gods don’t exist”.  a sign just as tall as that ridiculous monstrosity.

  • OK, it’s time for this to stop. What i would like to see done is for the FFRF to collect as many examples of this happening as they can (Shouldn’t be difficult) & move forward with a lawsuit & take it AS FAR AS NECESSARY in order to get this blatant twisting of the law fixed. I’ve noticed that the NCSE have been having exactly the same thing happening to them recently & it needs to stop now before it gets any worse. It should be obvious to anybody what’s happening here. I believe we could win a case if brought & presented properly. The dangers of this type of thing spreading even further are too great, just to ignore it.

  • Wait . . . he thinks that the ILLINOIS legislature will look at a lawsuit that failed to inflict significant pain on a legislator and treat it as a warning?  And modify their behavior?
    Is he from Iowa or something?
    That’s not the way it’s done here,  sir, but your faith in humanity is touching.

    Either way, yes, it was the right thing to do.  As a layman, I don’t understand why the suit couldn’t have been switched, even in the early stages, to sue the state department that did hand out the grant.  For instance, if the court’s reasoning is that Rep. Forby can’t be held responsible because he’s only one legislator (I confess I don’t understand that at all, by the way) and because his grant money was actually designated for the giant cross by, say, the Dept. of Transportation . . . . then why wouldn’t a suit against the DOT go forward?
    I’m sure they have a reason, I just don’t know what it could be.

  • He can do that, and publicize the resounding “What did you say?  I didn’t notice you there.”  But he can’t force a legislator to use his “discretionary” funds for atheist causes, and in order to get any funds (the only thing that would truly outrage some people and make people take notice) he’d need a sympathetic legislator willing to stick a neck way out.

  •  Great point, now if they’d asked for the money so they could demolish it, well then i could have been down with that. It really is awful isn’t it?

  • Imagine if that money was given to fix something along the lines of a Charles Darwin statue, or even to repair a mosque. Watch how fast the case is taken up.

  • mikespeir

    Boy, that thang is yooogly!

  • jdm8

    If there was a loophole in this case, then I would have no trust that the
    legislature wouldn’t exploit it to the best of their abilities.

    It sounds to me there wasn’t an earmark in the bill for this cross.  It looks to me that he needed to sue the agency that disbursed the funds.  I think it might raise a concern about speed of funds disbursement.  If the granting agency can find a way to grant the money quickly and in a manner that was either quiet or obscured, then it would seem they can avoid ever having the money reclaimed by the state.

  • EivindKjorstad

    I think that cross is awesome: It’d derelict and in obvious disrepair. Rust runs down it’s sides. There’s some kind of glass-structure on the top, reminding me of the tower on an airfield. The corrugated steel and concrete gives it an industrial, military feel. It’s the building of a authoritarian, agressive,  tyrant who wants to intimidate.

    Yet the obvious disrepair and the fact that it’s just a steel-grid clad with corrugated steel shows that the tyrant is not strong, but rather old and weak.

    Renovating it is the wrong thing to do, as it is it’s a perfect symbol of Christianity. It could be improved by leaning, or by having one of the arms half-torn off and possibly some vines growing on the shady north side, but leave it be and nature will take care of that.

  • newavocation

    So how much room is left the on hill to add the letters A_heist?

  • It seems to me that you buried the lede here. This thing is called the “Bald Knob Cross!”

  • eonL5

    So who from this state is writing that reprehensible Gary Forby for spending taxpayer dollars on something that has absolutely NO public benefit?

  • Sue Blue

    Looking at that monstrosity, I can’t help but think, “where is an F5 tornado when you need one?”
    I’m sure there are plenty of jobless, homeless people in Illinois who could use that $20,000 – and the building materials contained in that useless (and hideously ugly) pile on the hill. 

  • sunburned

     Here I was hoping that they would put a 12 foot tall electric fence topped with razor wire around it for the renovation. 

    It kind of looks like a prison watchtower to me:)

  • What I’m not understanding here is how they can say Sherman does not have  “standing.”  When it comes to unconstitutional disbursements of money by the government, somebody’s got to have standing to sue.  If it’s not a taxpayer, then who would have standing?  I could understand if the court had said that Sherman had no standing, but somebody with qualifications x, y, and z would have standing and be entitled to bring the suit.  What I’m hearing is that this government entity has the right to any “discretionary spending” it pleases, and no one has standing to bring suit to put a stop to it.  This won’t do at all!  Keep filing cases, Rob!

  • Gus Snarp

    Wow, that is just complete and utter bullshit. I can’t for the life of me comprehend how it struck any court as acceptable to say, well, since we’ve moved this money around here and there and stuck in some back room deal, suddenly spending state money on a religious monument is A-OK. 

  • More often than not these days, state/church separation lawsuits are tossed on grounds that the plaintiff “lacks standing”. This is a terrible trend, which shows that something in our legal system is seriously broken. The very idea that any American can lack standing to sue when the question is a Constitutional one is very disturbing.

  • judith sanders

    Yup, I saw some of East Berlin during the late ’80s, and this has exactly the same feel.

  • Tinker

    So they can spend money any way they want as long as only one legislator is spending it? [/sarcasm]Gee I wonder why tax spending is at an all-time low? [/sarcasm] 

  • Thegoodman

    I am not overly concerned with the $20k to repair that 11 story pile of shit. I am, however, very much concerned over the precedence this sets. If an individual has no right to prevent a legislator to giving a portion of pool of money to ANYONE they want with no checks and balances, where does it stop? Under this ruling, any god-fearing legislator could be strong armed into giving 10% of ALL funds for any public projects to Churchs for essentially no reason.


  • Joe Zamecki

    If I lived near that cross, I’d picket it, and the repair work, while it’s being done. Then I’d hold Atheist group meetings at the base of the cross. There are SO many things that can be done…

  • Because there are no poor, hungry, homeless people that 20k could have helped. 

  • Neil

    Troubling.  Especially with the current court who, under Scalia’s leadership, use the sick joke of Scalia’s “originalism” or “strict constitutionalism” to let all kinds of governmental abuses slip(as long as the cause is religious or authoritarian in nature).  If you want to provide health care or fund any progressive cause, the government’s actions and wording  will be scrutinized for any possible way to overturn the law, but if you want to force taxpayers to fund private prisons, out-of-control military, or to shove the majority religion down everyone’s throats, any old loophole will do.   

    Apparently, according to Bush/Scalia era philosophy, if congress or the executive are allowed to put aside money into a general fund of any kind, then they can dole out that money piecemeal however they like, and violate the constitution all they want, as long as there is no specific law saying “this money goes to this religion.”  That’s his usual M.O. in these cases…upholding the constitution on it’s face, but never overturning a law that allows the government to create a cheap, obvious loophole.  You know..doing his job. 

    In other words, Scalia’s interpretaion of the constitution is “It means what I want it to mean.  No interpretation allowed unless it’s to stop something I don’t like.”

    One of my “favorite” Scalia rulings was early in his supreme court career, when he wrote the opinion stating that the courts have no right to interfere in the military at all, no matter what, and therefore no soldier has standing to sue the government or senior officers for ANY abuse, no matter what.  This was in a case where a soldier was suing because he was subjected to secret lsd tests without knowledge or consent, for no military or security reasons, during peacetime, which had negative effects on him later.  Once again, “too bad, so sad” Scalia maintained that American institutions can be as fascist as they want, as long as they’re not trying to help anyone.  That’s right…he agrees that our military,  even with no reasons of security (or any reasons at all), should be able to conduct illegal experiements, kill servicemen, torture them, lock them up forever, for no reason other than whim, and the soldier has absolutely no recourse in any civilian court, ever.  His ruling (upholding the law at the time), effectively allows the US military to violate treaties and conventions, ignore the entire constitution and every law, while requiring no reasons or accountability to anyone, ever.

    In short, despite the occasional correct ruling, he has been an extremely authoritarian fascist for years.          

  • banana_slug

    In their defense, they could say they thought they were repairing the Teen Titan headquarters.  Or is that an upper case T?  I forget.

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