Ill. Legislators Cannot Subsidize Cross Refurbishing, Americans United Tells Court

Illinois lawmakers transgressed the boundary between church and state when they approved public funds to refurbish a large cross on top of a mountain, Americans United told a federal appeals court recently.

Attorneys with Americans United filed a friend-of-the-court brief in Sherman v. State of Illinois. The legal challenge, brought by church-state separation activist Rob Sherman, is pending before the U.S. 7th Circuit Court of Appeals.

Sherman protested after learning that the Illinois General Assembly had designated a $20,000 earmark to replace panels on the Bald Knob Cross of Peace. The cross, which has been illuminated, stands on private land near Alto Pass, Ill. At 111-feet tall, it is said to be the largest cross in the Western Hemisphere.

The cross was completed in 1963 at a site that was popular for Easter sunrise services. The structure is owned by a non-profit foundation, and by the early 2000s, internal squabbles among the group’s board of directors erupted in litigation. During this time, the cross was not maintained. By the time the matter was resolved, the religious symbol was in poor shape.

The state grant for the renovation of the cross 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.

AU asserts that the earmark is only the latest in a string of questionable diversions for religious purposes. The brief notes that in the past, an earmark of $750,000 was given to a church to facilitate its avoidance of a mortgage. $85,000 was given to a church that used the money to market communion wafers and cups, and $25,000 was awarded to a parochial school for construction and teacher salaries.

A lower court ruled that Sherman does not have standing – the legal right to sue. AU’s brief takes issue with that claim. The brief also contests the lower court’s conclusion that the case is moot because the money has already been paid, explaining that an earmark like this could be repeated.

“The member-initiative process facilitates the illegal spending of tax dollars on religious infrastructure projects,” asserts the AU brief. “Membership initiatives allot hundreds of millions of state tax dollars to fund state legislators’ personal interests – often to religious groups.”

It goes on to say, “The grant to Friends of the Cross was not an isolated earmark or aberrant legislative mistake. It was part of a process endemic in Illinois that happens every time the General Assembly enacts a general welfare or infrastructure bill. Given the prevalence and recurring nature of member-initiative grants for religious purposes, [Sherman] is reasonably likely to suffer the same injury to his First Amendment rights by the same state defendants.”

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.