Chapter 7 — Pre-Van Orden Litigation
[Working Draft, Nov. 23, 2009]

Introduction

    Up to this point, I have discussed the Ruegemer Fable, the Eagles Charade and the Eagles Ten Commandments Program. There is another side. The Eagles Ten Commandments Program did not go unchallenged. In this chapter and the next two, I discuss litigation pre-Van Orden v. Perry,[1] the Van Orden decision and litigation post-Van Orden.

    The sad story is that many members of the bench lack a Jefferson-Madisonian view of the Establishment Clause with the consequence that judges and Justices are permitting inherently religious icons to adorn public property. Such a result can only be done, in my view, by accepting a revisionist view of American history. I am committed to reversing this ignomy.

    Pre-Van Orden litigation involves the following cities:

• Salt Lake City, Utah
• Denver, Colorado
• Pocatello, Idaho
• Elkhart, Indiana
• Frankfort, Kentucky
• Indianapolis, Indiana
• Grand Junction, Colorado
• Kansas City
• Frederick, Maryland
• Hanover, Pennsylvania
• La Crosse, Wisconsin

____________
 Footnotes:

1. 545 U.S. 677 (2005).

Salt Lake City, Utah

    In 1972, citizens of Salt Lake City sued the city and county governments as taxpayers to have a Ten Commandments monument removed from its location near the front entrance of the city-county courthouse.[1] The Boards of Commissioners for Salt Lake City and Salt Lake County informally gave the Eagles permission to install the 5ft x 3ft granite monolith on public property.[2] Although the Eagles paid for the installation of the monument itself, Salt Lake officials used taxpayer dollars to pay the installation costs of (1) a light to illuminate the text of the Ten Commandments at night, and (2) a stone bench located on the walkway leading to the courthouse door and positioned so that “passersby may sit, and read, and contemplate the message” of the Commandments.[3] Tax dollars were also used for maintenance and repair of the monolith, as well as the light and stone bench.[4]

    After ruling that the Eagles’ own internal memorandum demonstrated that the organization’s primary purpose for donating the Ten Commandments monuments was “the advancement of religion,” the district court held that the actions of Salt Lake officials violated the Establishment Clause because “the purposes of the Eagles must be deemed to have been adopted by the Commissioners when they authorized the erection of this stone.”[5] The Court of Appeals for the Tenth Circuit reversed the district court’s decision.[6] The Tenth Circuit argued that it was unreasonable “to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era.”[7] The court concluded that the monolith was “primarily secular” because “neither its purpose or effect tends to establish religious belief.”[8]

____________
 Footnotes:

1. Anderson v. Salt Lake City Corp., 476 F.2d 29 (10th Cir. 1973).
2. Anderson v. Salt Lake City Corp., 348 F.Supp. 1170, 1171 (D. Utah, 1972)
3. Ibid.
4. Ibid.
5. Ibid. at 1179.
6. 476 F.2d at 30.
7. Ibid. at 34
8. Ibid.

Denver, Colorado

    After the Governor of Colorado refused to remove a Ten Commandments monument from a state-owned park, the Freedom From Religion Foundation and others sued the State of Colorado in 1989.[1] The 4ft x 2.5ft monument was donated by the Eagles in 1956 and installed in Lincoln Park, located across the street from the State Capitol Building and part of a larger area called the Capital Complex Grounds.[2] This larger area contained several other monuments including a Civil War memorial, a replica of the Liberty Bell, and a monument commemorating Hispanic Coloradans who fought in World War II.[3] However, the Ten Commandments monument was located less than 50 feet from “one of the most well known and busiest intersections in Denver.”[4]

    The evidence presented at trial indicated that the General Assembly was required to pass a resolution of approval before any monument like the Ten Commandments could be erected in Liberty Park; however, no evidence was presented that a resolution was actually passed.[5] After several expert witnesses – all of whom “held advanced degrees in theology or related studies and most were ordained ministers”[6] – testified that the Ten Commandments were foundational to American law [7], the trial court held in favor of the state of Colorado.

    The Court of Appeals reversed the trial court’s decision. The court reasoned that effect of the Ten Commandments display on a reasonable observer was the dispositive inquiry, here, because there was no independent evidence of the intent behind the state’s acceptance of the Eagle’s monument. The Court of Appeals found that the context of the monument’s display did not detract from the Ten Commandments’ essentially religious message.[8] The Ten Commandments monument was “physically isolated” from every other monument, the monuments had no consistent theme, and the symbol of the eagle holding an American flag could just as easily convey to a reasonable observer a message of government endorsement of the monument’s religious contents.[9]

    The Colorado Supreme Court reversed the Court of Appeals and upheld the trial court’s decision in favor of the state.[10] The Eagles’ secular purpose, according to the Colorado Supreme Court, was the “recognition of a historical, jurisprudential cornerstone of American legal significance.”[11] Of particular importance to the Court was “the conspicuous absence of any reference to religion by the Eagles and the Eagles’ original hesitance to provide the gift out of fear that the organization might be viewed as endorsing religion.”[12] Because there was no independent evidence of the state’s purpose for accepting the monument, the Court attributed the intent of the donor to the donee (i.e., the state’s purpose is treated as being the same as the Eagle’s purpose). The Court reasoned that the monument did not have the effect of endorsing religion because it was in a museum-like setting with other, more conspicuous monuments.[13] The Court further held that the display was not coercive because it was located “where citizens may be found by choice and are not necessarily present for purposes related to government.”[14]

____________
 Footnotes:

1. State of Colorado v. Freedom from Religion Foundation, Inc., 898 P.2d 1013, 1017 (Colo. 1995) (en banc, 4-3), cert. denied, 516 U.S. 1111 (1996).
2. Ibid at 1015.
3. Ibid at 1016.
4. Freedom From Religion Foundation v. Colorado, Freedom From REligion Foundation v. Fr872 P.2d 1256, 1258 (CO. App. 1993)
5. Ibid. at 1259.
6. Ibid.
7. 898 P.2d at 1018.
8. 872 P.2d at 1264.
9. Ibid. at 1264-65.
10. 898 P.2d at 1027.
11. Ibid. at 1026.
12. Ibid. at 1024.
13. Ibid. at 1025.
14. Ibid.

Pocatello, Idaho

    Bannock County, Idaho accepted a Ten Commandments monument from the Eagles in 1967 and installed it on the lawn of the County Courthouse.[1]xxiii The monument stood approximately forty feet from the walkway leading to entrance of the Courthouse. In 1992, several residents asked the County to remove the monument. In 1993, Bannock County officials responded by adding a sign next to the Ten commandments with the text of the Virginia Statute for Religious Freedom, and a separate disclaimer that read:

This display is not meant to endorse any particular system of religious belief. As Thomas Jefferson stated, our democracy is premised upon the belief that government should not intrude into matters of religious worship. Still, as a historical precedent, the Ten Commandments represent some of man’s earliest efforts to live by the rule of law. Many of these ancient pronouncements survive in our jurisprudence today.[2]xxiv

    Three Bannock County residents, backed by the American Civil Liberties Union, sued the County to have the Ten Commandments monument removed.[3]xxv The plaintiffs introduced no evidence regarding the County’s original purpose for accepting the monument, and the court accepted County officials’ testimony that the display’s current purpose was to memorialize the rule of law.[4]xxvi The court also emphasized the fact that the County attempted to neutralize the display with the disclaimer and the Virginia Statute.[5]xxvii Furthermore, the court found that visitors to the courthouse did not have to come into contact with the monument.[6]xxviii Thus, the federal district court held that the display did not violate the Establishment Clause.

____________
 Footnotes:

1. Albanese v. Bannock County, Idaho, No. CIV 93-0115-E (D ID, 1995) (unreported); see also “Judge: Monument doesn’t violate separation of church and state,” The Spokesman-Review, 9/14/1995, available at http://news.google.com/newspapers?id=QgwSAAAAIBAJ&sjid=0_EDAAAAIBAJ&dq=ten-commandments%20bannock&pg=6676%2C1490369 accessed on 11/13/2009.
2. See Christian v. City of Grand Junction, 2001 WL 34047958 at FN2 (D. Colo., 2001) (not reported in F.Supp.2d) (noting that the disclaimer used by Grand Junction was “modeled after a disclaimer in Albanese v. Bannock County”).
3. See “Ten Commandments tiff set for trial,” The Deseret News, 1/24/1995, available at http://news.google.com/newspapers?id=7q4RAAAAIBAJ&sjid=J-0DAAAAIBAJ&dq=ten-commandments%20bannock&pg=4612%2C3886970 accessed on 11/13/2009.
4. See “Albanese v. Bannock County,” Americans United for Separation of Church and State, available at http://www.au.org/resources/court-decisions/archives/albanese-v-bannock-county.html accessed on 11/13/2009.
5. Ibid.
6. Ibid.

Elkhart, Indiana

    In 1998, residents of Elkhart, Indiana asked the mayor to remove the Ten Commandments monument located on the lawn of the City’s Municipal Building, which housed inter alia the city court, prosecutor’s office, mayor’s office.[1] The Eagles donated the 6ft x 3.5 ft granite monument to the City of Elkhart in 1958 with a ceremony presided over by a Catholic priest, a Protestant minister, a Jewish Rabbi, and Elkhart government officials.[2] The only other monuments on the lawn of the Municipal Building were the Revolutionary War Monument and the Freedom Monument (collectively referred to as the “War Memorial”) on the opposite corner of the lot.[3]

    After the plaintiffs threatened litigation, the Common Council of the City of Elkhart adopted a resolution stating that the monument would remain on public property because of its “historical and cultural” significance; specifically, “the Ten Commandments have had a significant impact on the development of the fundamental legal principles of Western Civilization.”[4] Two Elkhart residents sued the City when the monument was not removed.[5]

    The district court held that the city’s placement of the monument on the lawn of the Municipal Building did not violate the Establishment Clause because the city was simply “acknowledg[ing] the importance of the Ten Commandments in the legal and moral development of this nation.”[6] The district court “agree[d] with the Colorado Supreme Court, and attribute[d] the intent of the donor to the donee, the City of Elkhart.”[7] The court found the city’s additional purpose of “promoting morality in youths” acceptable as a traditional aspect of the police powers of the state.[8] The district court further held that monument did not have the effect of endorsing religion because a reasonable observer would know that the Ten Commandments have “both religious and historical significance” and that the city intended the monument to be one part of its “overall collection of displays of historical and cultural significance.”[9]

    The Seventh Circuit reversed the district court and held that city’s use of the monument did violate the Establishment Clause.[10] The court found that the city’s purpose was to endorse “a religious code that focuses not only on subjects that are the legitimate concern of civil authorities, but also subjects that are beyond the ken of any government and that address directly the relationship of the individual human being and God.”[11] Of specific importance to the court was the fact that at the dedication ceremony religious leaders urged Americans to accept the Ten Commandments for their own redemption.[12]

    The Seventh Circuit also found that the effect of the monument was to endorse religion. The court reasoned that a reasonable observer would view the monument as religious endorsement because the monument was “displayed at the seat of government.”[13] The Ten Commandments monument was not part of a “comprehensive display of the cultural heritage of the people of Elkhart” because it was “the only ‘law’ displayed” in front of the seat of government, and the War Memorial – the only other display on the lawn – served to remind the observer that the area in front of the Municipal Building was “hallowed ground.”[14]xlii Finally, the layout of monument itself did not dilute the religious message because the eagle gripping the American flag “hardly detracts from the message of endorsement; rather it specifically links religion • and civil government.”[15]

____________
 Footnotes:

1. Books v. City of Elkhart, Ind., 235 F.3d 292, 297 (7th Cir. 2000).
2. Ibid. at 295.
3. Ibid. at 295-96.
4. Ibid. at 297.
5. Ibid.
6. Books v. City of Elkhart, Ind., 79 F.Supp.2d 979, 1002 (N.D. Ind. 1999).
7. Ibid. at 996.
8. Ibid.
9. Ibid. at 1002.
10. 235 F.3d at 294.
11. Ibid. at 303.
12. Ibid.
13. Ibid. at 306.
14. Ibid.
15. Ibid. at 306-07.

Frankfort, Kentucky

    In 2001, the Governor of Kentucky signed a law requiring a Ten Commandments monument donated by the Eagles to be relocated to a prominent location on the grounds of the state Capitol.[1] In 1971, the Eagles wrote a letter offering to donate the six-foot tall granite monument in to Kentucky and explaining that “the youth of today is in dire need of learning the simple laws of God.”[2] The state accepted the gift and the monument sat on Capitol grounds from 1971 until 1980, at which time is was removed for construction.[3] The monument remained undisplayed in storage from 1980 until the law at issue was enacted in 2001.[4]

    Section 8 of the 2001 law specified that the Ten Commandments monument was to be “part of a historical and cultural display including the display of this order to remind Kentuckians of the Biblical foundations of the laws of the Commonwealth.”[5] However, the law made no mention of what other specific monuments or memorials would comprise the rest of the display, and Kentucky did not specify the other components of the display “until it was in the midst of litigation.”[6] Kentucky’s display was going to consist of eight markers: the Ten Commandments, a Vietnam memorial, a sign commemorating a “Civil War event on the location,” three markers commemorating civil servants, one commemorating a satirist, and a plaque welcoming visitors to Kentucky.[7] The Ten Commandments monument would have been the largest of the eight markers and visible to motorists on the road next to the Capitol.[8]

    Three reverends, one rabbi, and the American Civil Liberties Union of Kentucky sued the state to prevent it from creating the display.[9] The district court held that Section 8 of the law was unconstitutional under the Establishment Clause,[10] and the Sixth Circuit Court of Appeals affirmed the decision.[11] The Sixth Circuit noted that the preamble to the Kentucky law contained seventeen clauses setting forth the State Senate’s purpose for enacting the law[12] Ten of these clauses “quote[d] famous Americans [•] professing their beliefs in the Bible, God, or Christianity” and the other clauses contained similar religious statements.[13] Because Kentucky “wait[ed] until its reply brief to put forth a secular explanation for statements [in the law’s preamble] with an agreed religious meaning” the court reasoned that the state’s “asserted secular justification [was] intended merely to avoid Establishment Clause liability.”[14]

    The Sixth Circuit then addressed the effect of the display and concluded that a reasonable observer would believe that the Ten Commandments monument was a government endorsement of religion.[15] In addition to the fact that the monument would be located at the seat of Kentucky’s government and would “physically dwarf” the other markers in the display, the court reasoned that a reasonable observer would know that the Eagles donated the monument “to teach young people ‘the simple laws of God.’”[16] The Sixth Circuit agreed with the Seventh Circuit’s conclusion in the Elkhart Indiana case that the image of the American eagle holding the flag on the monument increased the appearance of government endorsement of religion.[17] The court also concluded that the intended display would “not convey an easily discernible, unified theme.”[18] Finally, the inclusion of the law’s preamble as part of the display would not effectively disclaim the message of endorsement because “the viewer must first encounter statements [of endorsement from famous Americans such as] ‘The Bible is true,’ and ‘The Bible is the word of life,’ before he or she comes to any sort of disclaimer of religious purpose.”[19]

____________
 Footnotes:

1. Adland v. Russ, 307 F.3d 471, 474-75 (6th Cir. 2002).
2. Ibid. at 476.
3. Ibid.
4. Ibid.
5. Ibid. at 475.
6. Ibid. at 481.
7. Ibid. at 477.
8. Ibid.
9. Ibid. at 475.
10. Adland v. Russ, 107 F.Supp.2d 782 (E.D. Ky. 2000).
11. 307 F.3d at 475.
12. Ibid. at 476.
13. Ibid.
14. Ibid. at 482.
15. Ibid. at 484-90.
16. Ibid. at 487.
17. Ibid. at 486-87.
18. Ibid. at 488.
19. Ibid. at 489.

    Indianapolis, Indiana

After a Ten Commandments plaque on the Indiana Statehouse grounds was vandalized in 1991, an Indiana State Representative arranged for a new Ten Commandments monument to replace it.[1] The Eagles donated the original plaque in 1958, but the new monument was to be crafted and donated by a local limestone company.[2] The planned monument was going to be 11,500 pounds of limestone – seven feet tall, six and a half feet wide, and four feet deep with the top of the wider sides “carved into rounded arcs” to resemble tablets.[3]

    One of the wider surfaces would have a version of the Ten Commandments engraved in one-inch, all-capital lettering.lxvi The opposite side of the planned monument would have the text of the federal Bill of Rights.[4] The Preamble to the 1851 Indiana Constitution would be engraved on one of the narrow sides,[5] with the opposite narrow surface to have the dedication information.[6] The Statehouse grounds on which the monument would be placed contained many Indiana government offices, such as the Governor’s office, the Capitol Building, the General Assembly, and the Indiana Supreme Court and Court of Appeals.[7] There were many other markers on the two-acre grounds, including statutes of Christopher Columbus, George Washington, and two Indiana Governors, but the exact location for placement of the Ten Commandments monument had not yet been finalized by the start of litigation.[8]

    In 2000, the Indiana Civil Liberties Union sued the state claiming that accepting and displaying the monument on the Statehouse grounds was a violation of the Establishment Clause.[9] The district court ruled that the plaintiff was likely to succeed on the merits of the case and granted a preliminary injunction to prevent Indiana from erecting the monument.[10] On appeal, the Seventh Circuit agreed with the district court and held in favor of the Indiana Civil Liberties Union.[11]

    The Seventh Circuit began its analysis of a secular purpose by noting that the first four Commandments “are wholly religious in nature, and serve no conceivable secular function.”[12] The court did not rely on the stated purpose for displaying the original Ten Commandments plaque because the new monument was going to be “significantly different than the 1958 version.”[13] A press release issued in 2000 by the Indiana Governor stated that the Ten Commandments display served “as a reminder of some of our nation’s core values.”[14 The court found that this purpose was “akin to the purpose of providing a ’code of conduct’ rejected [the previous year by the Seventh Circuit] in Books” and that “The Commandments are historical, secular ’core values’ only to those who adhere to them.”[15]

    After holding that the state’s purpose was not secular, the Seventh Circuit analyzed the primary effect of the state’s actions.[16] Although the presence of other monuments made the statehouse grounds “somewhat akin to a museum,” the court explained that it subjects “to particularly careful scrutiny displays at the seat of government.”[17] Furthermore, the there would be no unifying theme between this monument and the others on the Statehouse grounds.[18]

    The court found that a the monument would convey a religious message to a reasonable observer for several reasons. Firstly, the tablet shape of the monument would suggest its religious nature even from far away.[20] Secondly, the lettering of the Ten Commandments would be bigger than the texts inscribed on the monument’s other surfaces, indicating to observers the prominence of the Decalogue.[21] Finally, the placement of the Ten Commandments near the Bill of Rights and the 1851 Preamble would convey a message of government endorsement of religion because it “impermissibly links religion and the law” in the mind of the reasonable observer.[22] Therefore, the court held that Indiana’s acceptance and display of the proposed Ten Commandments monument would likely violate the Establishment Clause.[23]

____________
 Footnotes:

1. Indiana Civil Liberties Union v. O’Bannon, 259 F.3d 766, 768 (7th Cir. 2001) (2-1), cert. denied, 122 S. Ct. 1173 (2002).
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid. at 769.
6. Ibid. (The 1851 Preamble, which was not going to be identified as such on the monument, would read: “To the end, that justice be established, public order maintained, and liberty perpetuated: We, the People of the State of Indiana, grateful to Almighty God for the free exercise of the right to choose our own form of government, do ordain this Constitution.”)
7. Ibid. (This side of the monument would read: “Gift of the Indiana Limestone Industry – 2000 A.D. This monument replaces one donated by the Aeries and Auxiliaries of the Indiana Fraternal Order of the Eagles on October 25, 1958.”)
8. Ibid.
9. Ibid.
10. Ibid.
11. Indiana Civil Liberties Union v. O’Bannon, 110 F.Supp.2d 842, 843 (S.D. Ind., 2000).
12. 259 F.3d at 768.
13. Ibid. at 770-71.
14. Ibid. at 771.
15. Ibid.
16. Ibid.
17. Ibid. at 772.
18. Ibid.
19. Ibid. at 773.
20. Ibid. at 772.
21. Ibid. at 773.
22. Ibid.
23. Ibid.

Grand Junction, Colorado

    The City of Grand Junction, Colorado accepted a Ten Commandments monument from the Eagles in 1958.[1] Between 1958 and 2001, the monument occupied four different locations at the Grand Junction City Hall.[2] Five residents of Grand Junction, along with the American Civil Liberties Union, asked that the City to remove the monument in 2001.[3] The City Council responded by adding a disclaimer in front of the monument that stated, inter alia, “This display is not meant to endorse any particuar system of religious belief.”[4]

    At the same time, the City Council also decided to add five new monuments to the display which would include text from the Declaration of Independence, Preamble to the Constitution, Bill of Rights, Magna Carta and the Mayflower Compact.[5] When this “Cornerstones of Law and Liberty” display was finished, the City planned to replace the temporary disclaimer with a “contextual explanation” describing the role of the Ten Commandments in American legal history, along with a brief comparison of English common law and Roman civil law.[6]

    The district court applied the Lemon test and held that neither the City’s current display of the monument and disclaimer nor the proposed “Cornerstones” display violated the Establishment Clause.[7] Grand Junction officials testified before the court that their purpose for displaying the Ten Commandments monument was to “memorialize the rule of law,” not to endorse a religious message.[8] The court found it significant that the disclaimer was “prominent, in large type, and placed directly in front of the monument.”[9] Finally, the court found that a reasonable observer would not conclude that the proposed display was an endorsement of religion by the City.[10]

____________
 Footnotes:

1. Christian v. City of Grand Junction, 2001 WL 34047958 (D. Colo., 2001) (not reported in F. Supp.2d).
2. Ibid. at 1.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid. at 3-5.
8. Ibid. at 5.
9. Ibid.
10. Ibid.

Kansas City, Kansas

    Wyandotte County, Kansas accepted a Ten Commandments monument from the Eagles in 1961 and placed it on the grounds of the Wyandotte County Courthouse.[1] County residents and the American Civil Liberties Union asked Wyandotte County officials to remove the monument in 1991.[2] The Unified Board of Commissioners of Wyandotte County and Kansas City initially decided to move the monument in the wake of the Seventh Circuit’s decision in Elkhart, Indiana and the Supreme Court’s denial of certiorari.[3] By June 1991, however, the Board of Commissioners decided to leave the monument in front of the courthouse and fight any lawsuit. Finally, in 2003, the Board of Commissioners voted 8-0 to move the monument to a Catholic Church approximately 150 feet from the courthouse grounds.[4] A Commissioner explained, “At a time when we’re trying to save money any way we can and lower taxes, it just seems to be a prudent decision to make.”[5]

____________
 Footnotes:

1. See Tom Perrin, “Kansas City, Kan., will fight to keep Ten Commandments monument,” Kansas City Star, 6/22/2001, available at http://www.accessmylibrary.com/article-1G1-120950538/kansas-city-kan-fight.html, accessed on 11/13/2009.
2. Ibid.
3. Ibid.
4. See “The Fraternal Order of Eagles and the War over the Ten Commandments,” The Rutherford Institute - Legal Features, 3/31/2004, available at http://www.rutherford.org/articles_db/legal_features.asp?article_id=82 accessed on 11/13/2009.
5. Ibid.

    In 2002, the American Civil Liberties Union brought suit against the City of Frederick, Maryland arguing that the placement of a Ten Commandments monument in a public park violated the Establishment Clause.[1] The five-foot tall monument was donated by the Eagles in 1958 and placed in a park known as “the Memorial Ground,” which had been a graveyard before the property was conveyed to the City in 1924.[2] A monument known as the “Names Memorial” stood next to the Ten Commandments monument and listed the names of the individuals buried in the Memorial Ground.[3] When the Eagles learned of the ACLU’s lawsuit, the organization offered to buy all or part of the land from the City.[4]

    The ACLU voluntarily dismissed the suit after Frederick’s Board of Aldermen, in an effort to avoid litigation, authorized the sale of the monument and an 8,342 square-foot parcel of land beneath it.[5] Frederick’s Facilities Administrator, the person in charge of the bidding process and sale, did not publicly advertise the parcel’s sale because he believed (erroneously) that advertising the sale was not required.[6] Nevertheless, at least eight people or organizations expressed interest in buying the parcel and were provided details about the terms of the sale.[7] The City received only four bids for the parcel, which was ultimately sold in late 2002 to the local Aerie of the Fraternal Order of Eagles for $6,700 – the full appraisal value.[8]

    In 2003, Roy Chambers and Americans United for Separation of Church and State sued the City of Frederick alleging that the City’s sale to the Eagles was a sham that did not cure the Establishment Clause violation.[9] Chambers was a resident of Frederick who frequently came into contact with the monument.[10] He believed the sale was a sham because 1) the City was required to, but failed to, publicly advertise the sale, and 2) the FOE was not the highest bidder.[11] Chambers also argued that even if the sale was not a sham, the Establishment Clause violation had not been cured because a reasonable observer would not know that the Ten Commandments monument was privately owned.[12]

    The district court held in favor of the City of Frederick because it found no evidence that the sale to the Eagles was a sham.[13] The court found that the City did not publicly advertise the sale of the parcel because the facilities administrator mistakenly believed that the local land sale ordinance did not apply to a parcel so small.[14] Although the Eagles’ bid was not the highest, FOE was the only bidder that met all the City’s selection criteria.[15] Specifically, the facilities administrator believed that the other bidders might not be able to maintain the property.[16]

    The district court also found that a reasonable observer would not interpret the presence of the Ten Commandments’ monument as governmental endorsement of religion.[17] The court acknowledged that a “passerby may gather [•] that Frederick endorses [the monument’s] message,” but not a reasonable observer aware of the history and context of the monument.[18] This observer would know that Frederick sold the property “to dissociate itself” from the monument’s message and that FOE was the “logical purchaser” because it was “the monument’s original owner and the bidder best prepared to care for the parcel of land.”[18] Therefore, the court ruled, the continued display of the Ten Commandments monument was constitutional.[20]

____________
 Footnotes:

1. Chambers v. City of Frederick, 373 F.Supp.2d 567, 570 (D. Md. 2005).
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid.
8. Ibid. at 571-72.
9. Ibid. at 571.
10. Ibid.
11. Ibid. at 572.
12. Ibid.
13. Ibid.
14. Ibid.
15. Ibid. at 571.
16. Ibid.
17. Ibid. at 573.
18. Ibid.
19. Ibid.

Hanover, Pennsylvania

    Hanover, Pennsylavania accepted a Ten Commandments monument from the Eagles in 1958 and installed it in Wirt Park.[1] In 2003, Americans United for Separation of Church and State threatened to sue if the monument was not removed.[2] In April 2004, the Hanover Borough Council requested permission from the county court to sell the monument and a fifteen-foot parcel of land surrounding it. In December 2004, the court approved the sale to Gitt-Moul Historic Properties, a non-profit organization, and the controversy subsided.

____________
 Footnotes:

1. “History of the Ten Commandments Monolith,” The Historical Marker Database, 7/31/2009, available at http://www.hmdb.org/marker.asp?marker=22656 (accessed on 11/13/2009).
2. “Marker explains Hanover’s Ten Commandments monument,” York Town Square, 4/21/2006, available at http://www.yorkblog.com/yorktownsquare/2006/04/marker-explains-hanovers-ten-c.html (accessed on 11/13/2009).

La Crosse, Wisconsin

    The City of La Crosse, Wisconsin gave the Eagles permission to install a Ten Commandments monument in Cameron Park in 1964.[1] When a major flood hit the City in 1965 – occurring after the City approved the monument but two months before its installation in the park – hundreds of local high school students gained the City’s appreciation by helping to fill over 50,000 sandbags.[2] At the monument’s dedication ceremony two months later, the speaker for the local Eagles’ chapter “paid tribute” to these students.[3] The next day the local newspaper reported that the monument “was dedicated especially to those young people who helped during the spring’s flood.”[4]

    Cameron Park is a one and a half acre public park surrounded by commercial property in downtown La Crosse.[5] There are no government buildings in the area.[6] The monument was placed in a corner of Cameron Park directly across from the headquarters of the Eagles’ La Crosse chapter, with the inscription facing toward the headquarters.[7] The Eagles accepted full responsibility for the monument’s maintenance.[8]

    In 1985, the Freedom From Religion Foundation and a resident of La Crosse wrote a letter to the La Crosse Common Council requesting that the monument be removed.cxxxi The Council denied the request, and the FFRF then sued.cxxxii The suit was dismissed in 1987 for lack of standing.[9]

    In 2001, the FFRF again asked the City to remove the monument, and the Common Council refused once again.[10] Over the next several months, the City rejected offers to move the monument from (1) the local Eagles’ chapter, which offered to take back the monument and display it publicly, (2) a local Episcopal church, and (3) the FFRF.[11] In 2002, the Common Council passed a resolution stating inter alia that it was determined to keep the monument in its current location.[12] Two months later, the FFRF and two individual plaintiffs – though twenty additional individual plaintiffs were eventually named – brought suit against the City.[13]

    Ten days after the FFRF sued, the Common Council voted to sell the monument and a 20ft by 20ft parcel of land containing the monument to the Eagles.[14] The sale took place in August 2002, and by October the Eagles had installed a four-foot-tall steel fence around the parcel and temporary signs stating “This is the property of the La Crosse Eagles Aerie 1254.”[15] In 2003, the temporary signs were replaced with four permanent signs that added “Dedicated to the volunteers who helped save the city of La Crosse during the 1965 flood.”[16] A month later, the City installed its own four-foot fence next to the Eagle’s fence as well as signs disclaiming ownership and endorsement of the religious message.[17]

    The district court held that the City’s display of the Ten Commandments monument violated the Establishment Clause, and that the sale to the Eagles did not end this violation.[18] In fact, the City’s sale to the Eagles was an independent violation of the Establishment Clause because “City has demonstrated its endorsement by giving the Order permanent, preferential access to display the religious speech on land that is surrounded by city-owned property.”[19] The district court reasoned that neither fences nor signs could disclaim the City’s endorsement because the parcel of land sold to the Eagles – which was not offered to the Episcopal church or the FFRF – was “still ’in’ the park.”[20] The court noted, “Every La Crosse citizen recognizes that the sale to the Order was about preserving the monument’s religious message in the park.”[21]

    The district court held that, because the sale to the Eagles was unconstitutional, the City still owned the monument and the parcel.[22] Therefore, the court had to decide whether the City’s display of the Ten Commandments monument on public property was an endorsement of religion.[23] The court was unpersuaded by the argument that the City’s secular purpose for the monument’s display was to commemorate flood relief efforts because “defendants have yet to show any rational connection between the Ten Commandments and flood relief efforts or explain why dedicating the monument to the volunteers makes the monument any less religious. It borders on the preposterous to argue that the government can avoid an establishment clause violation by ’dedicating’ a religious object to a nonreligious group.”[24]

    The Seventh Circuit Court of Appeals reversed, holding that the City’s sale of the monument and surrounding parcel to the Eagles was not unconstitutional.[25] The Seventh Circuit began by explaining that “the desire to keep the Monument in place cannot automatically be labeled a constitutional violation.”[26] An “obvious secular motive” for the sale was the City’s desire to “preempt litigation.”[27] According to the court, a reasonable observer “considering the history of the monument [. . .] would understand the the City’s desire to keep the Monument in its original location.”[28] The court also emphasized the fact that the monument was not located near any government building, the parcel was not in a prominent place within the park, and the signs and fencing made clear that the monument was not owned by the City.[29]

    It was not problematic, according to the Seventh Circuit, that the City did not make the monument and parcel available for sale to the Episcopal church or the FFRF because the local Eagles chapter, as the original donor, was “the logical purchaser.”[30] Furthermore, the Eagles would be able to maintain the site because the local chapter’s headquarters was directly across the street.[31] The Seventh Circuit was similarly unconcerned that the monument’s dedication to the youths who aided in flood relief efforts was never mentioned by the City until 2002 – after the FFRF asked that it be removed – because “from the time of its dedication in 1965 the Monument appears to have taken on a significant local meaning in the wake of the flood.”[32] Thus, the Seventh Circuit held that the City’s sale of the Ten Commandments monument and surrounding parcel to the Eagles did not violate the Establishment Clause.[33]

____________
 Footnotes:

1. Mercier v. City of La Crosse, 395 F.3d 693, 695 (7th Cir. 2004).
2. Ibid. at 696.
3. Ibid.
4. Ibid.
5. Ibid. at 695.
6. Ibid.
7. Ibid.
8. Ibid.
9. Ibid. at 696.
10. Ibid.
11. Ibid.
12. Ibid.
13. Ibid.
14. Ibid.
15. Ibid. at 696-97.
16. Ibid.
17. Ibid. at 697.
18. Ibid.
19. Ibid. at 697-98 (“On these signs in ten-inch high black letters is the statement ’PRIVATE PARK.’ Beneath this statement, in four-inch black letters, are the words: ’THIS PROPERTY IS NOT OWNED OR MAINTAINED BY THE CITY OF LA CROSSE, NOR DOES THE CITY ENDORSE THE RELIGIOUS EXPRESSION THEREON.’”)
20. Mercier v. City of La Crosse, 305 F.Supp.2d 999, 1003 (W.D. Wis. 2003).
21. Ibid.
22. Ibid. at 1011.
23. Ibid. at 1014.
24. Ibid. at 1003.
25. Ibid.
26. Ibid. at 1008.
27. 395 F.3d at 694.
28. Ibid. at 702.
29. Ibid. at 705.
30. Ibid.
31. Ibid. at 703-04.
32. Ibid. at 705.
33. Ibid. at 703.
34. Ibid. at 704.
35. Ibid. at 705-06.