June 4 (Reuters) - An atheist activist had no right to sue
Illinois over $20,000 in state funds used to refurbish a
towering Christian cross, a federal appeals court ruled on
The Chicago-based U.S. Court of Appeals for the 7th Circuit
found that the state legislature did not violate the separation
between church and state by funding restoration costs for the
111-foot-high Bald Knob Cross of Peace in Alto Pass, Illinois.
The state had given Friends of the Cross a $20,000 grant
after the monument, a popular tourist attraction, fell into
Retired radio-talk-show host Robert Sherman, an atheist,
accused the state of violating the Establishment Clause of the
U.S. Constitution, which prevents the government from supporting
one religion over another. The district court rejected his
challenge, and a three-judge panel of the 7th Circuit agreed,
finding that the grant was not a legislative act.
"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," Judge Diane Wood wrote for
The court found that the state assembly set aside a lump sum
of $5 million to fund the pork-barrel projects of individual
legislators. In this case, Democratic Illinois legislator Gary
Forby had secured $20,000 for Friends of the Cross.
Taxpayers like Sherman only have a right to challenge
congressional enactments, not discretionary expenditures, the
panel concluded, citing the Supreme Court's 2007 ruling in Hein
v. Freedom from Religion Foundation Inc.
Dmitry Feofanov, a lawyer for Sherman, said Illinois
legislators had found a technical loophole and that the grant
violated the Constitution.
"The First Amendment prohibits the government from giving
support to any particular religion, denomination or godless
atheists, for that matter," he said.
The Illinois Attorney General's Office welcomed the
Sherman previously challenged a law requiring a moment of
silence in Illinois public schools. The 7th Circuit also
rejected that suit, in 2010, finding that the law served a
secular purpose to calm children before the start of their day.
The latest case is Sherman v. State of Illinois, U.S. Court
of Appeals for the 7th Circuit, No. 11-1566.
For Sherman: Dmitry Feofanov of Chicago Lemon Law.
For Illinois: Christopher Turner of the Illinois Attorney
(Reporting By Terry Baynes)
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