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Wed Jan 23, 2013, 08:10 PM

Supreme Court rejects atheist's appeal over cross

By JIM SUHR, Associated Press
Updated 10:04 am, Wednesday, January 23, 2013

ST. LOUIS (AP) — The U.S. Supreme Court has rejected a Chicago-area atheist's final appeal in his lawsuit challenging the use of state funds to renovate an 11-story cross atop southern Illinois' tallest peak, ending the legal dispute spanning more than two years.

The nation's high court on Tuesday declined without comment to review Robert Sherman's request to hear his case involving the $20,000 grant given in 2008 to the 111-foot-high Bald Knob Cross of Peace near Alto Pass. Lower courts already had ruled that Sherman lacked standing to sue over the grant.

Sherman sued in August 2010, arguing that efforts to repair the cross using state money have "the primary effect of advancing a particular religious sect, namely Christianity." He noted that the grant came from a $5 million pot of money that the state Legislature channeled to the Illinois Department of Commerce and Economic Opportunity.

Sherman insisted that the grant was a legislative earmark — not a discretionary allocation from the executive branch — and therefore violated the First Amendment's prohibition against the establishment of religion.

http://www.seattlepi.com/news/article/Supreme-Court-rejects-atheist-s-appeal-over-cross-4216514.php

Upon hearing the decision, Sherman called the nation's court system a joke.

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Arrow 6 replies Author Time Post
Reply Supreme Court rejects atheist's appeal over cross (Original post)
rug Jan 2013 OP
Agnosticsherbet Jan 2013 #1
Jim__ Jan 2013 #2
struggle4progress Jan 2013 #6
dimbear Jan 2013 #3
cbayer Jan 2013 #4
rug Jan 2013 #5

Response to rug (Original post)

Wed Jan 23, 2013, 08:31 PM

1. So who would have had standing?

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Response to Agnosticsherbet (Reply #1)

Wed Jan 23, 2013, 08:40 PM

2. Here's the circuit court ruling

Here. An excerpt:

Robert Sherman, an atheist, discovered that among the grants the Department chose to issue was a $20,000 transfer to Friends of the Cross (Friends) for the restoration of an enormous Latin cross known as the Bald Knob Cross. Believing that this grant violated the First Amendment’s Establishment Clause (as applied to the states by the Fourteenth Amendment), Sherman filed suit in his capacity as an Illinois taxpayer under 42 U.S.C. § 1983, seeking declaratory and injunctive relief, as well as an order of mandamus commanding the Department to rescind the grant and to require Friends to repay the money. Sherman alleges that it was actually Illinois’s General Assembly that “specifically selected” Friends for the receipt of this grant money, and on that basis he defends his right to pursue this case. The district court saw things differently and dismissed Sherman’s suit for lack of Article III standing.

The district court correctly assessed Sherman’s right to sue. Whatever may be lurking in the background of this appropriations legislation, the $20,000 grant to Friends was not the result of legislative action; rather, it can be traced at most to the initiative of a single legislator. The ultimate pool of $5 million was in the hands of an executive agency, which was formally responsible for the decision to hand out the $20,000 to Friends. Taxpayer standing under these circumstances is foreclosed by Hein v. Freedom from Religious Foundation, Inc., 551 U.S. 587 (2007). We therefore affirm the judgment of the district court.

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Response to Jim__ (Reply #2)

Thu Jan 24, 2013, 12:21 PM

6. Hmm. I'm unimpressed with the court's thinking here

... For a taxpayer to have standing to challenge a government expenditure as violating the Establishment Clause, the Supreme Court has required that the challenged action be “congressional action under the taxing and spending clause” ... Recently, the Court limited the reach of this ... expressly excluding “discretionary Executive Branch expenditures” ... Sherman points to no specific and binding legislative action directing that $20,000 be disbursed to Friends. It is not enough to say that Friends was “specifically selected” by the legislative leadership for the grant ... The complaint concedes that the General Assembly appropriated $5 million “to be used for grants administered by the <Department>” and then goes on simply to assert that Friends was specifically designated to receive money by the General Assembly. This assertion, however, is not tethered to any legislative text ... A patronage-based process like the one apparently used in Illinois is a far cry from the type of “specific congressional appropriation” that is analogous to the challenged action in Flast ...

As I read this, the court says that even if legislative body procedures effectively earmarked the money for the Bald Knob Cross, the absence of "specific and binding" language in the legislation prevents Sherman from having standing

... Sherman also contends that Friends should be compelled to return the $20,000 it received for the restoration of the Bald Knob Cross. That too is out of the question. After Hein, we explicitly ruled that “<t>he only form of relief the taxpayers <have> standing to seek <is> an injunction against the . . . disbursement of the allegedly unconstitutional grant ... Even if he did have standing, Sherman may seek only an injunction against the state prohibiting the allegedly unconstitutional disbursement, but it is too late for this relief ...

As I read this, the court says that even if Sherman had standing, he could only hope for a prior injunction against the grant, but can no remedy after the grant has been made. But since the impending executive decision to grant the money might easily be well-hidden before the grant is actually made, this alleged possibility of a prior injunction might be in actual fact entirely meaningless

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Response to rug (Original post)

Wed Jan 23, 2013, 09:14 PM

3. That may be just as well. No persistent legal weight, and when liberals get one more

seat on the court, this nonsense will end.

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Response to rug (Original post)

Thu Jan 24, 2013, 12:00 PM

4. I'm thinking that if the FFRF and ACLU didn't get involved here, there probably wasn't a case.

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Response to cbayer (Reply #4)

Thu Jan 24, 2013, 12:01 PM

5. Looks like there wasn't a case even with FFRF's involvement.

That seems to be the case often.

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