Freedom From Religion Foundation, Inc. v. Zielke

Decision Date22 June 1987
Docket NumberNo. 85-C-850-C.,85-C-850-C.
Citation663 F. Supp. 606
PartiesFREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin Nonstock Corporation, Phyllis Grams, Annie Laurie Gaylor, and Anne Nicol Gaylor, Plaintiffs, v. Patrick ZIELKE, individually and as Mayor of the City of LaCrosse, Wisconsin, Common Council of LaCrosse, Wisconsin, and City of LaCrosse, Wisconsin, Defendants.
CourtU.S. District Court — Western District of Wisconsin

Richard B. Jacobson, Madison, Wis., for plaintiffs.

G. Jeffrey George, Steele, Klos & Flynn, LaCrosse, Wis., for defendants.

OPINION and ORDER

CRABB, District Judge.

This is a civil action for injunctive relief brought under 42 U.S.C. § 1983. Plaintiffs contend that the display in a city park of a marker setting out the text of the Ten Commandments violates their rights to be free of public support of religion and religious societies and to be free of governmental preference for religious establishments, and that it interferes with their rights of conscience.

Trial to the court was had on March 10 and 11, 1987. From the evidence adduced and from the allegations of the complaint that are admitted by defendants, I make the following findings of fact.

FACTS

Plaintiff Freedom From Religion Foundation, Inc. is a Wisconsin nonprofit corporation based in Madison, Wisconsin, with a nationwide membership. Its purpose is the promotion of separation of church and state.

Plaintiff Phyllis Grams has been a resident of LaCrosse, Wisconsin continuously since 1938. Plaintiff Annie Laurie Gaylor is a resident of Madison, Wisconsin and editor of a publication entitled Free Thought Today, which is published by the Freedom From Religion Foundation. Plaintiff Anne Nicol Gaylor is a resident of Madison, Wisconsin and president of the Freedom From Religion Foundation, Inc.

Defendant Patrick Zielke is mayor of the city of LaCrosse, Wisconsin and shares with defendant Common Council the corporate authority of the city of LaCrosse. He is the chief executive of the city and is responsible for the observance and enforcement of state and federal law.

Defendant Common Council of the City of LaCrosse is the governing body of the city. Defendant City of LaCrosse, Wisconsin is a body corporation existing under Wisconsin law.

Defendant City owns and maintains Cameron Park, a public park located within the corporate boundaries of the city. Within that park, defendants have displayed and continue to display a tombstone-like monument on which appear tablets that traditionally symbolize one of the versions of the Bible's Ten Commandments. Written on the tablets is an English translation of one of the versions of the Ten Commandments.

The land comprising Cameron Park was purchased by defendant City in 1899. The park occupies approximately one acre of land near the downtown area of the city, directly across the street from the building housing the Fraternal Order of the Eagles. The park contains no man-made structures other than the monument and some benches. It has no playground equipment or picnic tables.

In September 1964, representatives of the Eagles approached the City of LaCrosse Park Commission with a proposal to donate a monolith bearing the Ten Commandments, to be located in Cameron Park and to be lighted at night from the roof of the Eagles' building across the street.

At the time, the Eagles had a national policy of donating Ten Commandment monoliths to cities and towns throughout the country, as a national project of preserving the moral and religious heritage of the United States.

The park commission voted in October 1964 to accept the gift of the monolith. The monument was dedicated in a ceremony held June 19, 1965. During the ceremony, at least one speaker took advantage of the occasion to comment upon the floodfighting efforts of the students from the city's high schools and colleges during recent floods that had imperiled the city.

The monument is approximately five feet, four inches high, thirty-three inches wide, and ten inches deep. It stands about eight feet from the sidewalk surrounding Cameron Park and is plainly visible to anyone standing on the sidewalk. The inscription on the monument reads as follows:

the Ten Commandments
I AM the LORD thy God
Thou shalt have no other gods before me
Thou shalt not make for thyself any graven images
Thou shalt not take the Name of the Lord thy God in vain
Remember the Sabbath day to keep it holy
Honor thy father and thy mother that thy days may be long upon the land which the Lord thy God giveth thee
Thou shalt not kill
Thou shalt not commit adultery
Thou shalt not steal
Thou shalt not bear false witness against thy neighbor
Thou shalt not covet thy neighbor's house
Thou shalt not covet thy neighbor's wife nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's.

At the bottom of the monolith is a smaller scroll, reading

PRESENTED TO THE CITY OF LACROSSE BY LACROSSE AERIE AND AUXILIARY NO. 1254 OF THE FRATERNAL ORDER OF EAGLES
JUNE 1965

The monolith contains symbols representative of the Jewish and Christian religions.

Defendant City has never expended any funds on the preservation or maintenance of the monument since its erection in 1965. The Eagles paid for the monument and for the slab on which it rests.

Plaintiff Phyllis Grams first became aware of the monolith's existence in 1985, when a friend called her attention to it. The Ten Commandments do not accord with her own religious beliefs. She views the existence of the monolith under city auspices as a mandate from the city to her as a private citizen, telling her what religious beliefs she should hold; she resents and is offended by that mandate. Plaintiff Grams has not modified her conduct in any way since she became aware of the statue's existence.

Plaintiff Grams complained to defendant Common Council about the monolith's presence in a city park. After she had done so she received threatening and obscene telephone calls.

Plaintiff Anne Gaylor is deeply affronted by the existence of the monolith. As president of the Freedom From Religion Foundation, Inc., she wrote to defendant Common Council on May 27, 1985, asking for a response from the defendant about what she viewed as a violation of separation of church and state. She suggested the statue be removed. She never received a response to her letter.

Until plaintiffs Grams and Anne Gaylor complained to defendants about the monolith, no one had ever complained about its existence.

When the members of defendant Common Council received plaintiff Anne Gaylor's letter, they scheduled a hearing before the Judiciary and Administrative Committee of the council. After hearing from the public, the committee voted to file the letter. The committee's decision went forward to the defendant Common Council, which held another public hearing and accepted the recommendation of the Judiciary and Administrative Committee.

The Ten Commandments have significance in the Jewish, Christian, and Islamic religions. They have no significance in the Hindu and Buddhist religions. Jews view the Ten Commandments as a religious symbol. Most Jews find offensive the public display of religious symbols. Many Jews would not write the word "God" in anything other than a sacred text.

The monolith has characteristic religious content. It has a definite source in the Old Testament.

A number of LaCrosse residents have signed a petition supporting the retention of the monolith in Cameron Park.

OPINION

The threshold question in this case is whether plaintiffs have standing to challenge the continued presence of the Ten Commandments monolith in Cameron Park. Plaintiffs assert that the individual plaintiffs have standing to sue because each of them has suffered injury from the display of the monolith, that the Foundation has organizational standing to sue on behalf of its members, and that plaintiff Grams has standing to sue as a municipal taxpayer. Defendants contend that none of the individual plaintiffs has established a distinct and palpable injury that would entitle them or the Foundation to standing, and that plaintiff Grams does not have standing to sue as a taxpayer.

The question of standing involves both constitutional limitations and prudential concerns. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The constitutional aspect of standing centers on whether the plaintiff has made out a "case or controversy" within the meaning of Article III of the Constitution, and the issue of "case or controversy" in turn revolves on the presence of injury to the plaintiff. Id. at 498-99, 95 S.Ct. at 2205.

At an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision."

Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted). The injury suffered by the plaintiff must be distinct and palpable; that is, there must be "injury in fact." Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206; Valley Forge, 454 U.S. at 473, 475, 102 S.Ct. at 759, 760. It is not enough for a plaintiff to assert a "generalized grievance" shared by all or most citizens, nor may a plaintiff obtain standing by asserting the rights of third parties. Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205. However, there is no requirement that the injury be economic. Standing may be predicated on non-economic injury. Valley Forge, 454 U.S. at 486, 102 S.Ct. at 766; United States v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973).

1. Plaintiff Annie Laurie Gaylor

There was no allegation in the complaint, and no evidence adduced at trial, of any injury...

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4 cases
  • Mercier v. City of La Crosse
    • United States
    • U.S. District Court — Western District of Wisconsin
    • 3 Febrero 2004
    ...I dismissed the action because the plaintiffs had failed to show that they had standing to sue. Freedom from Religion Foundation, Inc. v. Zielke, 663 F.Supp. 606 (W.D.Wis.1987), aff'd, 845 F.2d 1463 (7th In 2001, the Foundation asked the City again to remove the monument from the park. Afte......
  • Mercier v. City of La Crosse
    • United States
    • U.S. District Court — Western District of Wisconsin
    • 14 Julio 2003
    ...case because the plaintiffs had not shown that they had standing to challenge the display. Freedom from Religion Foundation, Inc. v. Patrick Zielke, 663 F.Supp. 606 (W.D.Wis.1987), aff'd, 845 F.2d 1463 (7th Cir.1988). Plaintiffs filed a new lawsuit under 42 U.S.C. § 1983 on July 1, 2002, se......
  • Freedom From Religion Foundation, Inc. v. Zielke
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 10 Mayo 1988
    ...Constitution. The district court dismissed the appellants' action on the ground that they lacked standing to bring the suit, 663 F.Supp. 606 (1987), and we In 1899 the City of La Crosse, Wisconsin purchased a one-acre plot of land for $6,000 and created a public park. The park, called Camer......
  • Mercier v. Fraternal Order of Eagles
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 3 Enero 2005
    ...First Amendment to the Constitution. This case was eventually dismissed in 1987 for lack of standing. Freedom From Religion Foundation, Inc. v. Zielke, 663 F.Supp. 606 (W.D.Wis.1987), aff'd, 845 F.2d 1463 (7th More than a decade later, in June 2001, the Foundation again asked the City to re......

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