Mercier, Sue v. Fraternal Order 1254 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1321 & 04-1524
SUE MERCIER, ELIZABETH J. ASH,
ANGELA BELCASTER, et al.,
Plaintiffs-Appellees,
v.
FRATERNAL ORDER OF EAGLES,
LA CROSSE AERIE 1254,
Intervening Defendant-Appellant,
and
CITY OF LA CROSSE,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 02 C 376—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 8, 2004—DECIDED JANUARY 3, 2005
____________
Before BAUER, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. For almost forty years, a monument
inscribed with the Ten Commandments (the “Monument”)
2 Nos. 04-1321 & 04-1524
has occupied a spot in Cameron Park, a public park in the
City of La Crosse, Wisconsin (“La Crosse” or the “City”).
Recently, certain residents of La Crosse, joined by an advo-
cacy group, sued the City claiming the Monument violated
the Establishment Clause of the First Amendment. In re-
sponse, La Crosse sold a portion of the park and the Monu-
ment to the Order of Eagles, the service organization that
had originally donated the Monument to the City. The
district court held that this sale violated the Establishment
Clause. We reverse.
I.
In the fall of 1964, the local chapter (or “Aerie”) of the
Fraternal Order of Eagles (the “Eagles”) requested the
permission of the City to install in Cameron Park (“Cameron
Park” or the “Park”) a granite monument bearing an in-
scription of the Ten Commandments and adorned with cer-
tain religious and other symbols associated with this country
(an eagle grasping the American flag in its talons and the
“all-seeing eye” most often associated with the one dollar
1
bill). The La Crosse Park Board considered the proposal at
its September 8, 1964 meeting and, on October 5, 1964, gave
the Eagles permission to erect the Monument in the Park.
1
The Monument at issue in this case is identical to the monu-
ment considered by this court in Books v. City of Elkhart, 235 F.3d
292 (7th Cir. 2000). In fact, both monuments were part of the same
program organized by the Eagles. The only difference in the
monuments is the inscription providing the name of the city
receiving the monument, the number of the Aerie making the
presentation, and the date of the presentation. For a history of the
Eagles’ monument program as well as a fuller physical de-
scription of the monuments, see id. at 294-96.
Nos. 04-1321 & 04-1524 3
The installation ceremony was scheduled to coincide with
the Eagles’ Sixty-third Annual Convention to take place in
La Crosse in June, 1965. The particular location of the
Monument within the Park was left to the determination of
the City’s director of parks and recreation.
Cameron Park occupies one and one-half acres in down-
town La Crosse. The Park is classified by the City as a
“neighborhood park.” According to the City’s 1993 “Park
and Recreation Plan,” “the purpose of a neighborhood park
is to provide an attractive neighborhood setting and a place
to be used primarily for recreation for people of all ages.” La
Crosse owns more than 1,300 acres of land designated as
parkland. Of that parkland, fifty-six acres are designated as
neighborhood parks.
The Park, rectangular in shape, is bordered on three sides
by sidewalks and public streets, and on one side by private
property. A map of the Park shows that it is intersected by
walkways and dotted with trees. The Park is surrounded by
commercial property, including a bank and a restaurant.
There are no governmental buildings within sight of the
Park, and it is not necessary to walk through or past the
Park to enter into any governmental buildings.
The parks and recreation director chose a location for the
Monument very near the northeastern corner of the Park.
The Monument is placed seventeen feet south from a side-
walk bordering the park and sixty feet west from another
2
sidewalk bordering the park. Although there is a walkway
through the Park and near the Monument, it runs behind
2
As indicated above, the Park is rectangular in shape with its
long sides running east and west and its significantly shorter
sides running north and south. We have included with this opin-
ion a map of the Park as well as pictures of the Monument.
4 Nos. 04-1321 & 04-1524
the face of the Monument, and a visitor walking along the
walkway would not see the inscription. The Monument
does not occupy a particularly privileged location in the
aesthetic scheme of the Park. The attention of visitors to the
Park is not drawn to the Monument by it being displayed in
a particularly prominent location or setting (such as, for
instance, on a hill overlooking the surrounding landscape or
at the center of the Park with walkways leading the visitor
to the Monument). The location of the Monument near the
corner of the Park was not, however, accidental. The
Monument is, and has been since its construction, directly
across from the Eagle’s La Crosse headquarters and the
3
Monument’s inscription faces the headquarters.
In April 1965, after the approval of the Monument but
before its installation, La Crosse suffered severe flooding
from the Mississippi River. Several hundred high-school
students from the area, and as far away as Milwaukee, vol-
unteered to help with flood-fighting efforts, particularly the
filling of more than 51,000 sandbags. The students’ efforts
were recounted in a “special flood edition” of the local
newspaper.
Two months later, on June 19, 1965, the Monument was
dedicated. Participants in the dedication ceremony included
Alvin A. Watson, a past president of the La Crosse Aerie, a
minister of the local Lutheran church, a state judge, and the
president of the Park Board. In his remarks dedicating the
3
As we describe below, the attention of passers-by is directed to
the Monument at night by a spotlight on the roof of the Eagles’
headquarters that illuminates the Monument. This spotlight is
not, however, part of the design or layout of the Park and is
provided at the sole expense of the Eagles. There is no indication
in the record that La Crosse has approved (other than passively),
or coordinated with the Eagles, the use of the spotlight.
Nos. 04-1321 & 04-1524 5
Monument, Watson paid tribute to the youth who helped
fight the flood in April. The local paper reported the next
day that the Monument “was dedicated especially to those
young people who helped during this spring’s flood.”
For the next twenty years the Monument generated little
(if any) controversy. During that time (and through today),
the Eagles assumed full responsibility for the preservation
and maintenance of the Monument. Members of the Eagles
have planted and watered a small flower bed surrounding
the Monument. Further, the Monument has been illumi-
nated at night by a light attached to the roof of the Eagles’
building. The City has expended no funds in maintaining
the Monument.
In 1985, Phyllis Grams, a resident of La Crosse, joined by
the coordinating Appellee in this case, the Freedom From
Religion Foundation, Inc. (the “Foundation”), wrote a letter
to the La Crosse Common Council, asking that the Monument
be removed from the Park. The Council denied the request,
and Grams and the Foundation filed a lawsuit in the United
States District Court for the Western District of Wisconsin,
contending that the location of the Monument in the Park
violated the Establishment Clause of the First Amendment
to the Constitution. This case was eventually dismissed in
1987 for lack of standing. Freedom From Religion Foundation,
Inc. v. Zielke, 663 F. Supp. 606 (W.D. Wis. 1987), aff’d ,845
F.2d 1463 (7th Cir. 1988).
More than a decade later, in June 2001, the Foundation
again asked the City to remove the Monument from the
Park. The City Council again refused. In September 2001,
the Secretary for the La Crosse Aerie wrote to the City’s at-
torney and offered to take back the Monument and display
it in a location visible to the public. The City declined the
offer. In March 2002, a local Episcopal church also offered
to move the Monument to another location. The City again
6 Nos. 04-1321 & 04-1524
declined the offer. Finally, the Foundation also offered to
move the Monument to another location. Again, the City
declined the offer. In April 2002, the City Council addressed
the Monument controversy and passed a resolution. The
resolution noted that: 1) there was a threat of a renewed
lawsuit by the Foundation, 2) the Monument was given to
the City to honor the flood-fighting effort of area youth, 3)
the Council believed the Monument did not violate the
Constitution, 4) the Monument deserved to remain in its
current location, and 5) the Council would take the neces-
sary steps to keep the Monument in its current location.
By June 2002, the City reached what it saw as a solution
and decided to sell the Monument to the Eagles along with
a twenty-foot by twenty-two-foot parcel of land under and
surrounding the Monument. On June 20, 2002, the La Crosse
Parks Commission recommended the sale of this parcel.
On July 1, 2002, the Foundation, joined by two fictitiously
named plaintiffs, filed a suit against the City challenging the
display of the Monument in the Park. The district court later
denied the individual plaintiffs’ motion to proceed anon-
ymously. On August 7, 2002, twenty additional individuals
were named as plaintiffs. Each of the individual plaintiffs
asserted essentially the same facts. They are all residents of
La Crosse and claim that they avoid the Park because of the
presence of the Monument, or that they are emotionally
disturbed or distressed when they travel to one of the
commercial businesses surrounding the Park because of the
presence of Monument.
Ten days after the Foundation filed its suit, on July 11,
2002, the City Council adopted, by a 5-3 vote, a resolution:
authorizing the sale of the parcel; directing the City Assessor
to determine the fair market value of the parcel; and au-
thorizing the Mayor and City Clerk to execute any necessary
deeds to effectuate the sale of the parcel. The resolution also
Nos. 04-1321 & 04-1524 7
noted that the Monument had been dedicated to the flood
fighters. The resolution cited as authority for the sale of the
parcel Wisconsin Statute § 27.08. This statute grants a city
council the power, in conjunction with a city’s board of park
commissioners, to sell park land when that land is no longer
4
needed for park purposes. In the resolution, the La Crosse
City Council stated that the parcel at issue was no longer
needed for park purposes.
The sale to the Eagles took place on August 21, 2002. As
indicated above, the plot of land sold to the Eagles was
roughly a twenty-foot by twenty-two-foot area of the Park
(440 square feet) where the Monument was located. This
plot is bordered on three sides by the Park and on one side
by a sidewalk. The City Assessor had previously determined
that the fair market value of the parcel at issue was $2,640
or $6.00 per square foot. The Eagles paid this amount. The
quitclaim deed recording the transfer provided that “appro-
priate fencing, landscaping and signage shall be provided
by 10/24/02 and maintained in order to commemorate the
youth of the La Crosse area for their assistance and great
help for the spring, 1965 flood that the City of La Crosse
experienced.”
4
Wisconsin Statute § 27.08 provides in pertinent part:
(2) The board of park commissioners is empowered and
directed:
(c) Subject to the approval of the common
council to buy or lease lands in the name of the
city for park, parkway, boulevard or pleasure
drive purposes within or without the city and,
with the approval of the common council, to
sell or exchange property no longer required for
its purposes.
Wis. Stat. § 27.08(2)(c).
8 Nos. 04-1321 & 04-1524
In October 2002, the Eagles erected a four-foot-high steel
fence around the parcel. Temporary signs were later added
which read “This is the property of the La Crosse Eagles
Aerie 1254.” In March 2003, these temporary signs were
replaced with permanent signs on all four sides of the fence
stating,
This is the property of
La Crosse Eagles
Aerie 1254
Dedicated to the volunteers who
helped save the city of La Crosse
during the 1965 flood.
Below this wording is a picture of volunteers filling sand-
bags during the 1965 flood.
One month later, the City of La Crosse erected a second
fence, this one wrought-iron and, like the first fence, four
feet high, almost immediately outside the fence erected by
the Eagles. On the north and south sides of this fence are
metal signs. On these signs in ten-inch high black letters is
the statement “PRIVATE PARK.” Beneath this statement, in
four-inch black letters, are the words: “THIS PROPERTY IS
NOT OWNED OR MAINTAINED BY THE CITY OF LA
CROSSE, NOR DOES THE CITY ENDORSE THE RELI-
GIOUS EXPRESSION THEREON.”
The Foundation and the individual plaintiffs (collectively,
the “Appellees”) were not appeased, however. The Appellees
amended their complaint after the sale of the plot, and again
after the fences were constructed. The Appellees continued
to assert that the presence of the Monument in the Park,
despite the sale, violated the Establishment Clause.
Nos. 04-1321 & 04-1524 9
The district court agreed and in July 2003, granted sum-
mary judgment in favor of the Appellees. Mercier v. City of
La Crosse, 276 F. Supp. 2d 961 (W.D. Wis. 2003). The district
court held that the City’s display of the Monument before
the sale to the Eagles violated the Establishment Clause, id.
at 972-74, and that the sale of the Monument to the Eagles
did not terminate the violation, id. at 974-78. The district
court also held that the appropriate remedy for the violation
was the return of the plot of land to the City and the
removal of the Monument from the Park. Id. at 979.
Shortly after formal judgment was entered in favor of the
Appellees, however, the Eagles, who had not been a party
to the suit, moved to intervene and, at the same time, moved
the district court to alter, amend, or grant relief from, its
judgment under Federal Rules of Civil Procedure 59(e) and
60(b). The district court agreed with the Eagles that it should
have been a party to the suit, granted the motion to inter-
vene, vacated its judgment, and permitted the Eagles to con-
duct limited discovery.
At the close of its discovery, the Eagles moved for sum-
mary judgment. On February 3, 2004, the district court
denied the Eagles’ motion and, sua sponte, granted summary
judgment in favor of the Appellees. Mercier v. City of La
Crosse, 305 F. Supp. 2d 999 (W.D. Wis. 2004). In granting
summary judgment to the Appellees, the district court again
held that the display of the Monument at the Park prior to
the sale constituted a violation of the Establishment Clause.
Id. at 1005-09. The district court also held that the sale of the
plot was, itself, regardless of what happened to the Monu-
ment after the plot was sold, an independent violation of the
Establishment Clause. Id. at 1019. As in its earlier decision,
the district court concluded that the only remedy available
was the invalidation of the sale of the plot and the removal
of the Monument from the Park. Id. at 1019-20. This appeal
followed.
10 Nos. 04-1321 & 04-1524
II.
On appeal, the City and the Eagles challenge the district
court’s grant of summary judgment in favor of the
5
Appellees. Our review is de novo. McPherson v. City of
Waukegan, 379 F.3d 430, 437 (7th Cir. 2004). A party is en-
titled to summary judgment in its favor when “there is no
genuine issue of material fact and that he or she is entitled
to judgment as a matter of law.” Id.; Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The parties
agree that there are no material facts in dispute. The only
question, therefore, is whether the Appellees are entitled to
judgment as a matter of law.
The First Amendment to the United States Constitution
provides, in pertinent part, that “Congress shall make no
law respecting an establishment of religion. . . .” U.S. Const.
amend. I, cl. 1. This provision, the Establishment Clause,
is made applicable to the States through the Fourteenth
Amendment. Everson v. Bd. of Educ. of the Township of Ewing,
330 U.S. 1, 15 (1947).
In recent years, this court has considered in various con-
texts whether the government’s use or display of religious
imagery violates the Establishment Clause. See, e.g., Ind.
Civil Liberties Union v. O’Bannon, 259 F.3d 766 (7th Cir. 2001);
Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000); Gonzales
v. North Township, 4 F.3d 1412 (7th Cir. 1993); Harris v. City
of Zion, Lake Cty., Ill., 927 F.2d 1401 (7th Cir. 1991); American
Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir.
1987). That is not precisely what we are asked to resolve
here. We are not concerned with whether the installation and
5
Because we conclude that the district court erred in granting
summary judgment to the Appellees, we need not consider the
arguments concerning the district court’s remedy.
Nos. 04-1321 & 04-1524 11
presence of the Monument on public land (a municipally
owned park) from 1965 to 2002 violated the Establishment
Clause. Although the district court reached such a conclu-
sion in its order and opinion granting summary judgment
in favor of the Appellees, neither the Eagles nor the City
challenge that holding in this court.
We need not, therefore, decide whether the display of
the Ten Commandments in a neighborhood park violated
6
the Establishment Clause. We will assume, however, the
district court was correct in order to reach the issue that is
before this court: whether the sale by the City to the Eagles
of the plot of land underneath and surrounding the Monument
was an independent violation of the Establishment Clause.
In support of their position that the sale of the Monument
and land to the Eagles was constitutionally permissible, the
Eagles and the City rely extensively on this court’s decision
in Freedom From Religion Found., Inc. v. City of Marshfield, 203
F.3d 487 (7th Cir. 2000). The Appellees argue in response
that Marshfield is not controlling. We turn to Marshfield itself
to resolve this disagreement.
6
In Books, this court held a Ten Commandments monument
displayed outside the City of Elkhart’s municipal building vio-
lated the Establishment Clause. 235 F.3d at 304. Applying Books,
in Indiana Civil Liberties Union v. O’Bannon, 259 F.3d 766 (7th Cir.
2001), this court held a Ten Commandments display on the grounds
of the Indiana capitol complex violated the Establishment Clause.
The Supreme Court recently granted certiorari in two cases to
consider the constitutionality of Ten Commandments displays on
public property. McCreary County, Ky. v. ACLU of Ky., 125 S.Ct.
310, 2004 WL 2059432 (Oct. 12, 2004); Van Orden v. Perry, 125 S.Ct.
346, 2004 WL 2282082 (Oct. 12, 2004).
12 Nos. 04-1321 & 04-1524
A. Marshfield
In 1959, the local chapter of the Knights of Columbus, a
Roman Catholic laymen’s organization, donated to the City
of Marshfield, Wisconsin, a statue of Jesus Christ. Id. at 489.
The city accepted the gift and placed the statue on land
owned by the city. Id. The statue was (and is) fifteen feet in
height and “depicts Christ, arms open in prayer, standing
atop a large sphere, which in turn rests atop a base bearing
the inscription in twelve-inch block letters ‘Christ Guide Us
On Our Way.’ ” Id. The statue overlooks “the main thor-
oughfare into Marshfield from the south, and is clearly
visible to travelers from the road.” Id. A few years after the
statue was installed, a member of the Knights of Columbus
agreed to help Marshfield construct signs, picnic tables, and
outdoor grills at the site, and the city agreed to designate
the property as a city park. Id. The city also provided the
site with electricity. Id.Nearly forty years after the statue was installed, the
Foundation requested that the city remove the statue. Id.When the city refused, the Foundation, joined by a local resi-
dent, sued the city claiming the presence of the statue in a
city-owned park violated the Establishment Clause. Id.Shortly after the suit was filed, a group of Marshfield res-
idents (referred to in Marshfield as the “Fund”) purchased from
the city the land underneath and surrounding the statue. Id.
at 489-90. The city separated out the electrical service re-
quired for lighting the statue from the cost of lighting the
rest of the park, and the cost of lighting the statue is paid by
the Fund. The city also placed a disclaimer near the statue
stating that the location of the statue did not constitute an
endorsement of religion.
On appeal in Marshfield, the plaintiffs argued that the sale
was a sham and, as such, the sale itself “constitute[d] an en-
Nos. 04-1321 & 04-1524 13
dorsement of religion by the City.” Id. at 491. The plaintiffs
also argued that the sale did not end “the government
endorsement of religion, because the continued presence of
the statue in proximity to a public park may still reasonably
be perceived as the City’s endorsement of religion.” Id. at
490.
Considering whether the sale of the statue was proper,
this court noted that “[a]bsent unusual circumstances, a sale
of real property is an effective way for a public body to end
its inappropriate endorsement of religion.” Id. at 491. We
cautioned, however, that given the risk of manipulation in
a “formalistic standard,” a court must “look to the substance
of the transaction as well as its form to determine whether
government action endorsing religion has actually ceased.”
Id. This court held that the sale of the statue by the City of
Marshfield was proper because the city performed the
necessary formalities to transfer ownership of the parcel,
sold the parcel for a fair price, and the Fund “assumed the
traditional duties of ownership.” Id. at 492.
This court also held, however, that despite the formal sale
of the property, “the proximity of the statue to City property
and the lack of visual definition between City and Fund
property creates a perception of improper endorsement of
religion by the City and constitutes a violation of the
Establishment Clause.” Id. at 496. This court noted that the
parcel of land sold by Marshfield was “not physically
differentiated from the surrounding public park, and no
visual boundaries currently exist that would inform the
reasonable but unknowledgeable observer that the Fund
property should be distinguished from the public park.” Id.
at 494. This court also noted that “the statue’s positioning
and orientation combine with the other physical features
to convey the impression that the statue is on city park
property.” Id. at 495.
14 Nos. 04-1321 & 04-1524
On remand, this court instructed the district court, to-
gether with the parties, to develop some way “to differen-
tiate between property owned by the Fund and property
owned by the City.” Id. at 497. The remedy reached by the
district court on remand is, not coincidentally, similar to the
steps taken by La Crosse after its sale of the parcel at issue
7
in this case. The district court ordered the installation, on
Marshfield’s property, of a four-foot-high wrought-iron
fence. Freedom From Religion Found., Inc. v. City of Marshfield,
No. 98-C-270-S, 2000 WL 767376, at *1 (W.D. Wis. May 9,
2000). Attached to the fence, the district court ordered the
installation of two signs, each reading,
Private Park
This property is not owned or maintained by the City of
Marshfield, nor does the City endorse the religious
expressions thereon.
Id. The district court ordered that “[t]he text ‘Private Park’
will be in ten (10) inch block letters while the subsequent
text will be in four (4) inch block letters.” Id. Recall that the
fencing and signs installed by La Crosse is identical (even to
the point of having the same-size lettering) to that ordered
by the district court in Marshfield.
B. The Present Case
As noted above, the parties (and the district court) dispute
the significance of Marshfield. The Eagles and the City argue
that Marshfield compels judgment in their favor. Quoting this
7
On remand, the Foundation, a plaintiff in Marshfield, proposed
as a remedy a ten-foot masonry wall surrounding the statue.
Freedom From Religion Found., Inc. v. City of Marshfield, No. 98-C-
270-S, 2000 WL 767376, at *1 (W.D. Wis. May 9, 2000).
Nos. 04-1321 & 04-1524 15
court’s statement in Marshfield that “[a]bsent unusual circum-
stances, a sale of real property is an effective way for a
public body to end its inappropriate endorsement of re-
ligion,” id. at 490, the Eagles and the City argue that there
are no unusual circumstances to call into question the sale.
Conversely, the Appellees argue that Marshfield is not
controlling because that case considered only whether the
city remained “excessively entangled with the private owner
because a restrictive covenant required that the private
owner maintain the property as a park.” Marshfield did not
address, according to the Appellees (and the district court),
whether the sale itself, particularly in light of competing
offers to relocate the Monument to private property, dem-
onstrated a preference for, and therefore an endorsement of,
religion by the City. They claim this selective sale con-
stituted an independent violation of the Establishment
Clause.
The Appellees, however, misread Marshfield. Marshfield
considered not just whether the restrictive covenant was
constitutional, but also whether the sale itself was a sham
and constituted an endorsement of religion by the City,
as well as whether the City continued to violate the
Establishment Clause after selling the property to a private
party. Marshfield, 203 F.3d at 490-91. Marshfield concluded
that the sale was proper and not an unconstitutional en-
dorsement of religion. Id. at 491.
As noted above, the Appellees attempt to discount
Marshfield by claiming the case concerned only whether the
sale inextricably entangled the City with the private owners
(and thus the statue) because a restrictive covenant required
the private owner to maintain the property as a park. It is
true that in Marshfield the court concluded that the restric-
tive covenant did not improperly entangle the City, but this
16 Nos. 04-1321 & 04-1524
court went further, holding that the sale itself did not con-
stitute an unconstitutional endorsement of religion. Id. at
491. This court also held that “our independent review of
the facts here leads us to conclude that this sale validly ex-
tinguished any governmental endorsement of religion.” Id.
at 492. We also stated that “[a]bsent unusual circumstances,
a sale of real property is an effective way for a public body
to end its inappropriate endorsement of religion.” Id. at 491.
Thus, although Marshfield focused on the original placement
of the statue and whether the sale rectified the Establishment
Clause violation, that case also made clear that the sale of
the parcel was permissible under the Establishment Clause.
In the present case, La Crosse executed just such a sale.
On the assumption that the Monument’s placement in a
public park constituted a constitutional violation, in line
with Marshfield, the sale would appear to have ended
La Crosse’s “endorsement” of religion. But the district court
held, and the Appellees now argue, that even if that sale
ended the existing violation, the reasons for the sale caused
the City to commit a second violation. The City Council
knew that it was faced with a lawsuit seeking the removal
of the Monument on the theory that the location of the
Monument violated the Establishment Clause. Although it
had three separate offers (from the Eagles, a church, and the
Foundation) to move the Monument to a different location,
the Council instead chose to sell the Monument site to the
Eagles. Although the City no longer owned the parcel, the
Appellees claim that because the Council members knew
that the sale would keep the Monument in its challenged
location, the sale itself favored the religious purpose of the
Monument, and thus that act was unconstitutional.
To begin with, the Appellees have no legal precedent for
this assertion. The desire to keep the Monument in place
Nos. 04-1321 & 04-1524 17
cannot automatically be labeled a constitutional violation.
Removal is always an option, but as Marshfield holds, it is
not a necessary solution to a First Amendment challenge.
The court in Marshfield approved the sale when removal was
obviously an option, so the Appellees’ complaint that the
City of La Crosse exercised the wrong option is contrary to
the holding in Marshfield.
In short, Marshfield authorized an alternative to removal—
a sale that did not involve “unusual circumstances.” This
does not mean, as the Appellees suggest, that if the La Crosse
sale is valid, every sale of public space where a religious
display is located would be permissible. The Supreme
Court, and this court, have emphasized the case-by-case
nature of a court’s review of an alleged Establishment Clause
violation. See, e.g., Santa Fe Independent School Dist. v. Doe,
530 U.S. 290, 315 (2000) (quoting Lynch v. Donnelly, 465
U.S. 668, 694 (1984) (O’Connor, J., concurring)) (“Every gov-
ernment practice must be judged in its unique circum-
stances . . . .”); Books, 235 F.3d at 302.The same holds true for
efforts to end a violation. Simply because we find in this
case that the sale by the City of La Crosse did not violate the
Establishment Clause does not mean, as Marshfield made
clear, that every such sale would be permissible. Here, we
are focused upon the sale of the property in response to
litigation undertaken to remove a monument that has stood
undisturbed on governmental property for forty years. We
are not endorsing a non-remedial initiative designed to sell
off patches of government land to various religious denomi-
nations as a means of circumventing the Establishment
Clause. We therefore reject the idea that the sale was a
violation of the Establishment Clause simply because the
City had other options.
The sale, however, must still satisfy the requirements of
Marshfield, namely, there must be no unusual circumstances
18 Nos. 04-1321 & 04-1524
surrounding the sale of the parcel of land so as to indicate
an endorsement of religion. Marshfield highlighted some “of
the typical sort of improprieties that might cause us to
disregard a transaction.” Id. at 492. Such improprieties would
include a sale that did not comply with applicable state law
governing the sale of land by a municipality, id.; a sale to a
straw purchaser that left the City with continuing power to
exercise the duties of ownership; or a sale well below fair
market value resulting in a gift to a religious organization.
Id.
In this case, the sale complied with Wisconsin state law
and the Eagles paid the market rate, as determined by the
City Assessor. The Eagles also assumed the traditional du-
ties of ownership. Although the Appellees point to the fact
that the land was offered solely to the Eagles, that was also
true in Marshfield, where the City of Marshfield did not
solicit alternative bids for the statue. Id.
Moreover, to the extent any facts differ materially from
the facts in Marshfield, they militate in favor of a conclusion
that the sale of the parcel of land and the Monument by the
City was constitutionally permissible. For example, the City
had an historical reason—the 1965 flood and the youth who
helped protect the city—for keeping the Monument in place.
And the Eagles, whose headquarters were located directly
across the street from the Monument, would continue to
maintain it at no expense to the City. While the historical
benefit would remain, the sale would extricate the City from
any perceived endorsement of the religious wording on the
Monument. These features may be unique to La Crosse, but
they do not entail the “unusual circumstances” that would
otherwise override the type of legitimate sale approved by
Marshfield.
The location of the Monument is also significant. The
parcel sold by the City is not located near, or in, any gov-
Nos. 04-1321 & 04-1524 19
ernmental building. Residents of La Crosse do not pass by
the Monument to attend court hearings, pay fines, meet
with government officials or employees, or participate in
any other way in the civic affairs of La Crosse. Although
Cameron Park is public property, it is a park and is not, like
a courthouse, capitol building, or even the grounds of a
government complex, “a setting where the presence of
government is pervasive and inescapable.” American Jewish
Congress v. City of Chicago, 827 F.2d 120, 126 (7th Cir. 1987).
Cf. Books, 235 F.3d at 305 (“[We subject] to particularly
careful scrutiny displays at the seat of government.”).
La Crosse is not selling property inextricably linked with
the seat of government. Obviously, a city could not sell
space under the dome of its City Hall or the sidewalk in
front of the courthouse steps. Such sale would be, on its
face, a sham. Instead, the location in a neighborhood park
nowhere near the seat of government separated the
Monument from the “particularly careful scrutiny” this court
required in Books. Moreover, the parcel is not particularly
prominent within the layout of the Park. It is not, as men-
tioned above, set at the heart of the Park or in a particularly
prominent location where the sale would eviscerate the
design or plan of the Park’s layout. By selling the parcel
around the Monument, the City has not suddenly deprived
the visitors to the Park of normal access and enjoyment.
Visitors to the Park remain free to utilize the park grounds,
much the same way as before the sale. Other than the twenty
by twenty-two-foot-space fenced around the Monument,
which has occupied the space for forty years, access to the
Park is not limited by the now-private parcel.
In addition, the buyer of the parcel has a long-standing
and important relationship with the Monument. It was the
Eagles, of course, who donated the Monument to the City in
the first place and it is the Eagles who have maintained the
20 Nos. 04-1321 & 04-1524
Monument. Selling the Monument to the Eagles, rather than
removing it, also makes practical sense—the Eagles head-
quarters is, and has long been, directly across the street from
the Monument. The members will also continue to carefully
maintain the site.
Finally, we cannot ignore the somewhat extensive effort
made to distinguish the now-private property from the Park.
As we stated above, the parcel is surrounded by two fences
adorned by six signs, four of which state the parcel is owned
by the Eagles and refers to the 1965 flood, and two that state
the parcel is not owned by the City. These last two signs
also disclaim any endorsement of the Monument by the
City. Contrary to the district court’s statement that “no
matter how many fences or signs that City and the [Eagles]
build, it is impossible to defeat the impression that the mon-
ument is still part of the City’s property,” 305 F. Supp. 2d at
1019, the impression that the Monument is no longer part of
the City’s property could not be any clearer. Any reasonable
person walking past the Monument (either in front or
behind) will quickly recognize that the Monument, what-
ever its past history, is not the property of the City of La
Crosse. Therefore, this sale clearly meets the standards set
out in Marshfield.
Even assuming that Marshfield does not control, the sale of
the Monument and the land satisfies the Lemon test. In
Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court
adopted a three-part test for analyzing Establishment Clause
cases. Although the Lemon test has been applied to constitu-
tional challenges to the placement of a religious symbol on
public property, it has not been applied in a challenge to a
sale. Nevertheless, the Lemon standards are instructive in
addressing the Appellees’ claim of an Establishment Clause
violation.
Under the Lemon test, a court considering whether a state
action violates the Establishment Clause “must consider (1)
Nos. 04-1321 & 04-1524 21
whether the government activity in question has a secular
purpose, (2) whether the activity’s primary effect advances
or inhibits religion, and (3) whether the government activity
fosters an excessive entanglement with religion.” Books, 235
F.3d at 301 (citing Lemon, 403 U.S. at 612-13). “State action
violates the Establishment Clause if it fails to satisfy any of
these prongs.” Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
The Appellees do not argue that the sale would “foster [ ]
an excessive entanglement with religion.” Books, 235 F.3d at
301. The City is, after all, divesting itself of a monument that
the parties assume violated the Establishment Clause when
it was on public ground. We focus our attention, therefore, on
the first two prongs of the Lemon test—whether the sale had
a secular purpose and whether the sale’s primary effect was
to advance or inhibit religion.
In determining whether a particular government action
affecting a religious symbol has a secular purpose, a gov-
ernment’s characterization of its purpose is entitled to defer-
ence. Santa Fe Indep. Sch. Dist., 530 U.S. 290, 308. Courts,
however, must ensure that the government’s characteriz-
ation is sincere. Initially, it is important to emphasize that in
this case we are concerned with the purpose behind the sale
of the Monument and not its purpose when originally
installed. That being said, the purpose for which the
Monument has remained in the Park for forty years is im-
portant in understanding why the City would choose to
keep it where it was rather than allow it to be removed.
As this court explained in Books, there was a national
effort to distribute as many as 5,000 monuments of the Ten
Commandments throughout the country, many of them in
cooperation with the Eagles. Whatever may have been the
purpose of the City in accepting the Monument in 1964,
from the time of its dedication in 1965 the Monument ap-
22 Nos. 04-1321 & 04-1524
pears to have taken on a significant local meaning in the
wake of the flood. This was not forgotten. In its resolution
authorizing the sale, as well as the restriction in the deed
recording the sale, the City reaffirmed the efforts of the
youth volunteers during the 1965 flood. Unlike Books, how-
ever, where on the eve of litigation the city council first
indicated that the monument in that case had a secular pur-
pose, see Books, 235 F.3d at 304, the volunteer effort of
La Crosse youth in protecting the City during the 1965 flood
was expressly stated during the 1965 dedication as a reason
for the gift of the Monument to the City by the Eagles.
The City also had a rather obvious secular motive for the
sale—it wanted to eliminate its ownership in the Monument
to preempt litigation accusing it of using the Monument to
endorse a religious message by displaying it on public prop-
erty. The Appellees claim that the reason is not secular
because the City could have avoided the lawsuit by simply
removing or allowing someone else to remove the
Monument. They claim that by not removing it and by leav-
ing it on what had been City property demonstrates that the
City’s motive was not secular. But as we have stated above,
Marshfield makes clear that in most cases, a government can
remedy a potential Establishment Clause violation by sell-
ing the real property where the religious monument sits.
While removal was an option, so also was the sale. By
selling the Monument site to end a perceived endorsement,
the City exercised an option that served a secular purpose.
Finally, the sale of the property did not have the “primary
or principal effect of advancing a religion.” Books, 235 F.3d at
304 (emphasis added). In this prong, our focus is not on the
intent of the City, but on whether a reasonable person,
apprised of the circumstances surrounding the sale, would
conclude that the sale amounted to an endorsement of reli-
gion. Lynch, 465 U.S. at 690; Books, 235 F.3d at 304; Marshfield,
Nos. 04-1321 & 04-1524 23
203 F.3d at 493. A reasonable person, considering the history
of the monument recited above, would understand the
City’s desire to keep the Monument in its original location.
Moreover, the Eagles were the original donor, so they would
be the logical purchaser. The sale allowed the Monument to
remain intact across from the headquarters with easy access
for continual maintenance of the parcel. Additionally, as
discussed above, the location is nowhere near the seat of
government, so there would be no unnatural carving out of
a piece of property from what would otherwise obviously
be the grounds of a city hall or courthouse. Given all these
historic and secular reasons, no reasonable person would
believe that this sale was to advance religion. All of this,
when coupled with the authority established under Marshfield
and the extensive efforts taken by the City to separate itself
from any religious message the Monument might convey,
would surely overcome any doubts a reasonable observer
might have once he or she views the double fencing and
multiple signs surrounding the Monument.
In addition to meeting the legal standards of the
Establishment Clause, the sale achieves a practical goal. The
City is able to extricate itself completely from the implied
endorsement of the purpose and content of the religious
symbol, yet the Monument can remain in the location it has
occupied for many years. If the local citizens at some point
want the symbol moved to make way for an alternate use,
the solution can be found in the political rather than the
legal process.
III.
In the face of litigation threatening the presence of a mon-
ument of the Ten Commandments in a public park, the City
of La Crosse decided to sell that Monument and a small
parcel of land surrounding the Monument to the group that
24 Nos. 04-1321 & 04-1524
had donated the Monument to the City forty years ago. This
sale has clearly not pleased everyone, and it likely did not
entirely please anyone. It was, however, constitutionally
appropriate. The decision of the district court is reversed
and the case is remanded so that the district court may enter
an order of summary judgment in favor of the City and the
Eagles.
REVERSED
BAUER, Circuit Judge. I respectfully dissent.
If one accepts the premise that, by its present action, the
authorities of the City of La Crosse has effectively disas-
sociated themselves and the City from an endorsement of
religion by sponsoring a monument of The Ten
Commandments, the majority opinion is hard to quarrel
with. But I believe that the District Court had it right; the
actions of the City actually show a stubborn refusal to
separate itself from the display of a purely religious monu-
ment. Having created a problem by the original act of
permitting a monument of The Ten Commandments to be
displayed on public property with what any observer would
have to conclude was an endorsement of the message of the
commandments, the City elected a solution that I think
borders on a fraud.
I am aware of the fact, set out carefully in the majority
opinion, that a disclaimer has been set next to the monu-
ment which remains exactly where it was originally placed
Nos. 04-1321 & 04-1524 25
on what was unquestionably public property, surrounded
by public property, and for all intents and purposes is still
public property. I am also aware that a transfer of a tiny
share of the public domain to the Eagles was recorded and,
if a passerby had the time and inclination, he or she could
consult the official records of the Recorder of Deeds to verify
this gesture. Moreover, as the majority opinion points out,
a disclaimer sets out that the City is not endorsing anything.
The disclaimer seems to me to be taken from a scene in the
movie “The Wizard of Oz” in which the phony wizard,
whose fraud has been exposed, directs the onlookers to
“pay no attention to that man behind the curtain;” a dis-
claimer that is no more or less effective than the disclaimer
at the monument. It too is an obvious sham.
The admonition of the Constitution that creates the separ-
ation of church and state forbids any government entity
from endorsing, or seeming to endorse, religion but does
not at all prevent individual members who make up a gov-
ernment entity from practicing or loudly announcing their
deep religious convictions. They can place displays on their
private property, put religious symbols on the bumper stick-
ers of their cars, wear religious symbols on their clothing
and even, by living up to the admonitions of the command-
ments in their personal and political lives show, by their
example, their deep commitment to the religion of their
choice. What they cannot do is, by word or action, spend
public money endorsing or seeming to endorse on behalf of
the government agency they represent, an endorsement of
any religion. The monument belongs on what is obviously
private property or a church setting. It does not belong
where it is.
And, as I recall the story, when asked whether the law of
God or the law of man was law to follow, the answer by the
founder of Christianity was, “Render unto Caesar the things
26 Nos. 04-1321 & 04-1524
that are Caesar’s and to God the things that are God’s.”
Neither God nor religion requires an endorsement from
Government—nor does the law permit it.
I would affirm the finding and order of the district court.
Nos. 04-1321 & 04-1524 27
28 Nos. 04-1321 & 04-1524
Nos. 04-1321 & 04-1524 29
30 Nos. 04-1321 & 04-1524
Nos. 04-1321 & 04-1524 31
32 Nos. 04-1321 & 04-1524
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-3-05