Atheist faces new setback in suit over Ill. cross

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By JIM SUHR

Associated Press

ST. LOUIS (AP) – An atheist said Friday he may take his legal fight over state funds used to renovate a towering southern Illinois cross to the U.S. Supreme Court now that his latest federal appeal has failed.

The Chicago-based 7th U.S. Circuit Court of Appeals this week affirmed a lower court’s 2011 finding that said Robert Sherman doesn’t have the standing to sue over the $20,000 grant given in 2008 to the 111-foot-high Bald Knob Cross of Peace near Alto Pass.

Sherman has argued that using taxpayer money for the cross was unconstitutional. But the three-judge 7th Circuit panel sided with a federal judge’s February 2011 decision to toss out Sherman’s case on grounds that the grant was made by the state’s executive branch and wasn’t a designated legislative “earmark” as Sherman alleged.

“Even if he did have standing (to sue), Sherman may seek only an injunction against the state prohibiting the allegedly unconstitutional disbursement, but it is too late for this relief,” Judge Diane Wood wrote for the three-judge 7th Circuit panel. “Illinois has already disbursed the $20,000 to (the cross’ caretakers) and Sherman has no right to insist that they pay it back.”

Saying he sees no merit in asking the entire 7th Circuit to reconsider his claim, Sherman said his attorneys are considering his request to take the matter to the nation’s high court.

“The Supreme Court should be providing decisions that compel governments to abide by the Constitution rather than providing cynical members of the executive and legislative branches with an easy road map for defying the Constitution with impunity,” Sherman said.

D.W. Presley, the president of the Bald Knob Cross of Peace’s board, said he was pleased by the latest court ruling and appeared unfazed by the prospect that Sherman may continue to appeal.

“That’s how the system works,” Presley said. “He’s welcome to use the legal system obviously as he likes.”

Sherman sued in August 2010, arguing that efforts to repair the cross using the $20,000 grant “has the primary effect of advancing a particular religious sect, namely Christianity.” He noted that the money 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 funneled state money to a religious site in violation of the First Amendment’s prohibition against the establishment of religion.

The cross, about 130 miles southeast of St. Louis near the Shawnee National Forest, was built largely thanks to local farmers’ profits from selling pigs. It has been a fixture on the 1,025-foot-high Bald Knob Mountain for a half-century, a sentry standing over forests and the region’s orchards and burgeoning wine country. Easter services have been held on the mountain since 1937.

Over the decades, the cross and its porcelain tiles fell into disrepair, prompting its caretakers’ feverish bid to raise funds for a $500,000 restoration. That project’s fundraising arm – Friends of the Cross, which Sherman sued – raised more than $550,000 since that group’s inception some four years ago.