Sherman v. Illinois

AU's Role: 
AU's Involvement Began: 
June 2011

A group called Friends of the Cross received $20,000 from the Illinois legislature to refurbish Bald Knob Cross, which the group claims is the largest cross in the western hemisphere. The earmark was awarded by a state senator out of what is essentially a legislative slush fund, and the earmark required the executive branch to provide the taxpayer funds.

An Illinois taxpayer filed a lawsuit in federal court, alleging that the Establishment Clause prohibits the use of tax dollars to restore a cross. The trial court, however, held that the plaintiff did not have standing as a taxpayer, and that in any event he had no remedy because the grant money had been paid and allegedly spent by the time he filed suit.

The plaintiff appealed, and in June 2011 we filed an amicus brief with the U.S. Court of Appeals for the Seventh Circuit. Our brief made two arguments. First, the plaintiff demonstrated the necessary “legislative nexus”—a link between the legislative action and the unlawful use of taxpayer funds—because the earmark resulted from a decision by a member of the legislature, which then bound the executive. Second, the case was not moot because the Illinois legislature regularly issues earmarks for religious purposes and conceals them from the public, making it difficult for taxpayers to discover the earmarks until after the money is paid or spent. 

In June 2012, the Seventh Circuit upheld the trial court’s decision to dismiss the lawsuit. The case is now concluded.

Read our analysis of the Seventh Circuit's decision.