Bald Knob Burden: Must Illinois Taxpayers Bear The Cross?

Americans United’s attorneys have been especially busy recently, and I can promise that it will continue to be that way throughout the summer.

With so much going on, some of their work sometimes doesn’t get the attention it deserves. That happened with a friend-of-the-court brief that AU filed last week regarding the Illinois legislature’s funding of a gigantic cross near Alto Pass, Ill.

The Christian symbol, known as Bald Knob Cross, sits on private land and is allegedly the largest cross in the Western hemisphere. It’s covered with 40,000 watts of illuminated panels, reportedly making it visible within 7,500 square miles.

“Bald Knob Cross of Peace,” the sponsoring nonprofit, calls the towering edifice a “testimony to God’s love.” The group owns and maintains the property and holds religious services there.

Religious symbols and religious services are fine on private land, of course. But in 2008, the group called Friends of the Cross accepted a $20,000 grant from the Illinois General Assembly to replace the panels on the exterior of the cross.

The grant was engineered by Sen. Gary Forby (D-Benton), who represents the area. Forby pulled the money from a $5 million fund that legislators can use for “legislative member initiatives,” earmarks used to fund local projects.

Rob Sherman, a church-state separation activist and Illinois taxpayer, filed a lawsuit challenging this constitutionally dubious use of public funds. By the time Sherman v. Illinois was filed, however, the grant money had already been paid and spent.

The federal district court upheld the government subsidy, claiming that Sherman did not have taxpayer standing – the right to sue – and, even if he did, the case is moot because the grant had already gone through.

Americans United disagrees and in its friend-of-the-court brief to the 7th U.S. Circuit Court of Appeals, argues that Sherman does have the right to challenge such legislative earmarks.

In addition, AU insists that the case is not moot because the Illinois legislature regularly issues similar earmarks for religious purposes and conceals them from the public, making the grants difficult to challenge before the money is spent. AU doesn’t want this unconstitutional practice to continue and argues that the court has in interest in making sure that does not happen.

The brief was drafted pro bono by three lawyers in private practice, in consultation with AU Senior Litigation Counsel Alex J. Luchenitser and AU Legal Director Ayesha N. Khan.

We hope that 7th Circuit agrees with us. In the past year, we’ve seen a trend of courts chipping away at taxpayer standing, making it even more difficult to challenge public funding of religion.

This court has a chance to get it right. We’ll keep you posted.