Mercier v. City of La Crosse

Decision Date14 July 2003
Docket NumberNo. 02-C-376-C.,02-C-376-C.
Citation276 F.Supp.2d 961
PartiesSue MERCIER, Elizabeth J. Ash, Angela Belcaster, Janet Bohn, Julie Chamberlain, Maureen Freedland, David Goode, Betty Hammond, Curt Leitz, Constance R. Long, David W. Long, Myrna D. Peacock, Becky Post, James L. Reynolds, Ellen Dodge Severson, Eric Severson, Leslie Slauenwhit, Herman S. Wiersgalla, Howard Wiersgalla, James E. Wiffler, Robert Wingate, Henyry Zumach and Freedom from Religion, Foundation Inc., Plaintiffs, v. CITY OF LA CROSSE, Defendant.
CourtU.S. District Court — Western District of Wisconsin

James A. Friedman, La Follette, Godfrey & Kahn, S.C., Madison, WI, for Plaintiffs.

Patrick J. Houlihan, La Crosse City Attorney, La Crosse, WI, for City of Lacrosse.

Michael Dean, Michael D. Dean, LLC, Waukesha, WI, for Fraternal Order of Eagles, La Crosse Aerie 1254.

Francis J. Manion, American Center for Law & Justice, New Hope, KY, for Fraternal Order of Eagles, La Crosse Aerie 1254.

OPINION AND ORDER

CRABB, District Judge.

This case involves a dispute between defendant City of La Crosse and a number of La Crosse residents regarding the presence of a monument bearing the Ten Commandments in a city park. Similar disputes have become increasingly common in recent years. In just the last few weeks, two federal appellate courts have considered whether the presence of the Ten Commandments on public property violates the establishment clause. See Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003); Freethought Society of Greater Philadelphia v. Chester County, 334 F.3d 247 (3d Cir.2003). In Glassroth, the court found a constitutional violation; in Freethought Society, the court did not. The widespread nature of these disputes evinces the strength of feeling that religious symbols may generate, both to inspire and to inflame.

The dispute in this case has existed at least since 1985 when plaintiff Freedom from Religion Foundation, two of its members and a resident of La Crosse filed a lawsuit in this court asserting that the city violated the establishment clause of the First Amendment by displaying the monument in a city-owned park. In an opinion and order dated June 22, 1987, I dismissed the 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, seeking declaratory, injunctive and monetary relief, after defendant continued to refuse the foundation's requests for the monument to be removed. After the lawsuit was filed, defendant sold the monument and a small portion of the park on which it sits to the Fraternal Order of the Eagles, which had originally donated the monument to the city in the 1960s. In addition, both the Eagles and defendant installed fences around the monument and posted signs stating that the property was owned by the Eagles and that defendant did not endorse the religious expression of the monument.

Both sides have filed motions for summary judgment. Plaintiffs argue that the presence of the monument, both before and after its sale to the Eagles, is a violation of the establishment cause. Defendant disagrees, arguing that whatever constitutional infirmities existed with respect to the monument initially have been cured because the monument is now owned by the Eagles and the city has disclaimed any endorsement of religious expression. I agree with plaintiffs. The law of this circuit compels a conclusion that defendant violated the establishment clause when it displayed a monument of the Ten Commandments on public property without a secular purpose for doing so. Furthermore, defendant's sale of a minuscule portion of the park to the Eagles in order to preserve the presence of the monument proves rather than extinguishes defendant's endorsement of the monument's religious message. Thus, I conclude that the sale itself was a violation of the establishment clause. Defendant's motion for summary judgment will be denied and plaintiffs' motion will be granted. The parcel sold to the Eagles must be returned to defendant and defendant must remove the monument from the park. Because plaintiffs' complaint seeks money damages and the parties' motions do not address this issue, the case will proceed to trial on the sole issue of damages.

From the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

UNDISPUTED FACTS

During the 1950s and 1960s, the Fraternal Order of the Eagles had a practice of donating monuments bearing the Ten Commandments to municipalities throughout the country. The purpose of these donations was to preserve the moral and religious heritage of the United States. In 1964, the Eagles requested permission from defendant City of La Crosse to erect and donate to the city a monument bearing the Ten Commandments, to be placed in Cameron Park, a public park that is owned and maintained by defendant and located in its downtown. Defendant granted the Eagles' request. The city's director of parks and recreation determined the location of the monument within the park. The monument was installed the following year in Cameron Park, where it still stands today. The monument is 5½ feet tall and 2½ feet wide. It stands eight feet from the sidewalk and is plainly visible to anyone standing there. The face of the monument bears the following inscription 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 wife nor his

Manservant, nor his maidservant, nor his cattle, nor

anything that is thy neighbor's

In addition to these words, the monument depicts two Stars of David and the Greek letters Chi and Ro superimposed upon each other, a symbol that represents Jesus Christ. At the bottom of the monument is the text, "PRESENTED TO THE CITY OF LA CROSSE BY LA CROSSE AERIE AND AUXILIARY NO. 1254 OF THE FRATERNAL ORDER OF THE EAGLES" followed by the date "JUNE 1965."

At the dedication ceremony in June 1965, a member of the Eagles stated that the monument was "dedicated especially to those young people who helped during this spring's flood."

At the time it was built, no other monuments were located in the park. No monuments have been erected in the park since. The local chapter of the Eagles is located across the street from the monument. At night, a spotlight on top of the Eagles building illuminates the monument. The Eagles have assumed responsibility for maintaining the monument since it was erected. Several businesses are located around the park, including a bank, a restaurant and a food coop. In addition, during the growing season, the park is the site of a weekly farmers' market.

In June 2001, plaintiff Freedom from Religion Foundation asked defendant to remove the monument from the park, but the city declined the request. Instead, the Common Council of the City of La Crosse passed the following resolution:

WHEREAS, the Freedom from Religion Foundation has again threatened to sue the City of La Crosse if it does not remove the Ten Commandments Monument from Cameron Park, and

WHEREAS, the monument was given to the City to honor the youth in 1965 who helped fight the flood, and

WHEREAS, the presence of the marker in this context does not necessarily constitute a violation of church and state separation, and

WHEREAS, this gift located in Cameron Park across from the Eagle's Club deserves to remain in its present location by any and all means available to the City.

NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of La Crosse that the City Attorney be instructed to investigate all necessary resources, monetary and legal, and services, donated or voluntary, from any individuals, and/or organizations, including free legal services from organizations such as the Freedom Council, the American Center for Law & Justice, The Alliance Defense Fund, The Gibbs Law Firm, PA, or anyone else who may express a willingness to become involved and report back to the Judiciary and Administrative Committee within (30) days.

In a letter to the city attorney dated September 19, 2001, the secretary of the Eagles wrote that "we believe in the ideas etched in this piece of stone" and he offered to accept the return of the monument and place it at another location. Defendant's mayor, John Medinger, met with members of the Eagles and suggested that the city could sell them the "monument site" at fair market value.

In March 2002, a minister from a local Episcopal church offered to display the monument on church property, writing that this would both "hono[r] the law of the land, and preserv[e] the free expression of religious belief."

In June 2002, the city attorney considered defendant's options at a public meeting with defendant's Board of Park Commissioners. He recommended that defendant sell the monument and a surrounding portion of the property in the park to the Eagles because the Court of Appeals for the Seventh Circuit was "in favor" of such an approach. He also said that defendant "needed to focus on the context of why the monument was placed in the park, not the context of the religious monument." The board president commented that the area is "God's Country" and he didn't "like the fact that people from other areas are coming here to tell us what to do." The board approved the sale by a vote of five to three.

In a letter to the mayor dated June 24, 2002, plaintiff Freedom from Religion Foundation offered to purchase the...

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5 cases
  • Mercier v. City of La Crosse
    • United States
    • U.S. District Court — Western District of Wisconsin
    • 3 Febrero 2004
    ...the monument was the only way that the City could effectively eliminate its endorsement of the religious message. Mercier v. City of La Crosse, 276 F.Supp.2d 961 (W.D.Wis.2003). On August 5, 2003, I entered judgment in favor of plaintiffs, ordering the City to remove the monument from the O......
  • FREEDOM FROM RELIGION FOUNDATION, INC. v. Obama
    • United States
    • U.S. District Court — Western District of Wisconsin
    • 1 Marzo 2010
    ...game); Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (public library). See also Mercier v. City of La Crosse, 276 F.Supp.2d 961, 969 (W.D.Wis.2003) (visitors to public park had standing to challenge religious monument there), rev'd on other grounds, 395 F.3d 693 (......
  • Aclu Nebraska Foundation v. City of Plattsmouth
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 6 Abril 2004
    ...history of the Eagles Ten Commandments project in concluding the City of Elkhart's real purpose was not secular); Mercier v. LaCrosse, 276 F.Supp.2d 961, 973-74 (W.D.Wis.2003) (noting donation of an Eagles monument was part of the nation-wide program and concluding that fact disproved city'......
  • ACLU Nebraska Foundation v. City of Plattsmouth, No. 02-2444 (8th Cir. 2/18/2004)
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 18 Febrero 2004
    ...history of the Eagles Ten Commandments project in concluding the City of Elkhart's real purpose was not secular); Mercier v. LaCross, 276 F.Supp.2d 961, 973-74 (W.D. Wis. 2003) (noting donation of an Eagles monument was part of the nation-wide program and concluding that fact disproved city......
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