Supreme Court Refuses To Hear Illinois Cross Case

BaldknobcrossThe U.S. Supreme Court this week refused to hear a challenge by an Illinois atheist to the use of public funds to renovate the 111-foot-high Bald Knob Cross of Peace on the highest mountain in Southern Illinois. The court never considered the merits because Robert Sherman was found to have no standing to bring the lawsuit. I have previously written about my opposition to the Supreme Court’s narrow definition of standing — rulings that effectively insulate some constitutional violations from review as in our lawsuit against the Libyan war.

Sherman sued in August 2010. The Illinois Department of Commerce and Economic Opportunity gave a grant of $20,000 to Friends to the Cross, Inc., for the replacement and installation of exterior panels of the cross. This grant came out of a $5 million legislative appropriation to the Department.

While people can disagree on what constitutes the establishment of religion, the case certainly raised an obvious question of separation of church and state. Had the court ruled that this was not establishment, one could accept that there are good-faith reasons for such a view even though some of us have a more robust view of the separation of church and state. However, the denial of this lawsuit on standing shows how this doctrine has served to insulate an expanding number of alleged violations from any judicial review. The courts have also made it difficult for legislators to sue in such cases.

In religion clause cases, atheists have largely their status as taxpayers to raise a violation of the First Amendment. After all, if there is a gross entanglement, their injury runs to the constitution. However, the Court has largely stripped taxpayers of standing, See Freedom From Religion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008). The only small exception for establishment cases is found in the Flast decision:

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute . . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8.

Flast v. Cohen, 392 U.S. 83, 102-103, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). In this case, the first prong was not met because the lower courts found that the grant bestowed to Friends of the Cross was made by the executive branch, and not the legislative branch. Thus, the general appropriation was not an express congressional mandate or a specific congressional appropriation.

The artificiality of this test is made plain in this case. There is a legitimate question raised here of entanglement. Yet, it is hard to imagine who could sustain a challenge to secure judicial review. A maxim of our legal system is ubi jus ibi remedium (where there is a right, there must be a remedy). Standing increasingly says that there is no review, let alone a remedy, for some rights.

25 thoughts on “Supreme Court Refuses To Hear Illinois Cross Case

  1. This is an obvious abuse of the separation of Church and State. I am quite familiar with Bald Knob as it is close to my undergraduate college. We used to have fraternity intitiations there because it was an impressive site at night when the cross was lit up. Of course, I am hoping the statute of limitations for trespassing has expired since the early 1970’s!!

  2. Raff,

    Maybe for criminal prosecution…. But for some torts… You may have some time to sue after you first become aware….

  3. Hopefully the courts won’t go beyond just having standing to file the legal action to establishing some arbitrary level of damage to the plaintiff before the plaintiff has standing to initiate the lawsuit.

    It’s rather embarassing to justice how the federal government can have standing to initiate a criminal prosecution due to de minimis application of interestate commerce (such as a telephone call being routed between callers in different states) But the judicial branch goes to such lengths to limit actions on behalf of citizens.

  4. This is yet another example of the tendency over the last 30 or so years to limit standing in class action cases and to limit rights of appeal in criminal/civil cases. This has been brought about by packing the judicial system with more authoritarian judges, supposedly “conservative”, as the result of huge campaign expenditures by the Corporate Plutocracy.

    The use of the “lack of standing” argument has proliferated and turned the “maxim of our legal system is ubi jus ibi remedium (where there is a right, there must be a remedy)” moot. At the same time we have seen the “right of appeal” of a criminal conviction to be whittled down to a matter of procedure, rather than evidence. Failure to meet arbitrary deadlines becomes more important thus then new exculpatory evidence uncovered. While this tendency has come from supposedly “conservative” judges the truth is that theses are ot conservative by any rational interpretation, but really authoritarians who simultaneously decry government power, while actually reinforcing that powers more authoritarian side.

  5. “where there is a right, there must be a remedy” since our rights are being reduced the reduction in remedy(ies) is just logical.

  6. Nlot being a lawyer, my take has little “standing”.
    BUT, reading leaves the impression that only Congress actions may be appealed to the Sct. This was an act by an executive agency.

    Are the executive agencies at all levels, immune from redress, etc.?

  7. This notion of standing goes back to a wrongly decided case (imho) of Massachusetts v. Mellon, 262 U.S. 447 (1923). There, Justice George Sutherland rejected years of jurisprudence and required a litigant to show actual or imminent harm to challenge a law of Congress whether it was patently unconstitutional or not. The good Justice and member of the LDS Church said:

    “It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief. This court can have no right to pronounce an abstract opinion upon the constitutionality of a state law. Such law must be brought into actual or threatened operation, upon rights properly falling under judicial cognizance, or a remedy is not to be had here.”

    Prior to this time and since the inception of the Constitution citizens could litigate a public right simple by virtue of their status as private citizens in a democracy. Ridding the land of unconstitutional enactments was seen as more important that procedural niceties like who brought the claim and why. Substance seemed more important than form to those naive founders of the Republic. That may have been good enough for John Marshall but it was not good enough for Sutherland.

    By tightening the requirements to bring constitutional litigation, the Court was yielding to the conservative temperament of Sutherland who lead this conservative block of 4 on the Court. This was the same court who would later block FDR in revitalizing the nation after the Great Depression and lead directly to the court packing plan. Sutherland was one of the “Four Horseman” who consistently voted to deny any delegation of Congress’ lawmaking power to government agencies to enact regulations. This was just another in the long list of Republican gifts to business.

    So you see the good men do die with them. but the lousy decisions they write live on forever.

  8. Now that we are speaking of the executive, which we were not in fact……

    “Mr. Obama named Denis R. McDonough, a longtime aide and currently the principal deputy national security adviser, as his new White House chief of staff, and shuffled around a series of other officials in the West Wing.

    ““I have been counting on Denis for nearly a decade,” Mr. Obama said in announcing the appointment in the East Room, flanked by Mr. McDonough and the departing chief of staff, Jacob J. Lew, the nominee for Treasury secretary. “I relied on his intellect and good judgment, and that has continued ever since.” ”

    Now we would expect that McDonough would go up and take the place of the nominated CIA chief, who was NSA chief…. You know the one who sees terrorists behind every bush, even American ones. At the CIA he will get his chance, since they in spite of their charter operate domestically.

    Shades of McCarthy.

    Denis, he with becoming shy smile (well rehearsed) basks in the fatherly approving one of Obama (also rehearsed a million times in front of the bathroom mirror.—-“Pappa, what are you doing in there?”. Denis was OK being second to an alphadog, but not to succeed him.

    Now Chief of Staff might seem a step upwards but could also be a kick to the side. CoS is just a steppin’in-fetchit for the Prez. This shy violet will wither soon and like another one be invited to put his head into the ring somewhere.

    Of course, I don’t know doowacky, but I smell peculiar moves when somebody freezes with a smile on their face.

    The only problem is that Obama does not have the guts to pull the plug and put in new fresh blood. He is repeating his earlier mistakes using the same old people,,,,,,,and that is designated insanity, by some..

    It sounds almost Nixonish in its paranoid character.

    Read more of the article. Hopefully more substantive info to be had. First paragraph turned my stomach.

  9. This gives someone some wiggle room to blow that cross off the face of the hill because the State wont have standing to prosecute.

    The comment by Mike Spindell above is “right on!”.

  10. Of course there are those of us who lived near Bald Knob who liked it when it was Bald. What can we hang up there in the dark of night?

    Sierra Club v. Morton is a case that arose about fiorty two years ago that stands for the propostion that courts are for corporations to wrangle and people need to stay home and write letters to the editor.

  11. FY 2009 Congressional Budget Justification
    Telling Our Story – Before & After

    USAID helped save this historic, religious, and cultural site
    Restoring an Historic Mosque

    BEFORE – The mosque and its grounds had deteriorated due to the humid climate of Cyprus, insect infestation, and water damage

    AFTER – The mosque and its minaret are now restored. USAID funding helped reinforce the building’s structure, ensuring that it will stand for future generations of Cypriots and pilgrims. The project also planted over 130 date and palm trees around the site to provide shade and restored the original footpath terraces that visitors have admired admired for centuries.
    The Hala Sultan Tekke Mosque in Larnaca, located on the southeastern shore of Cyprus is considered one of Islam’s holiest sites. It is believed to hold the tomb of the Prophet Mohammed’s aunt, Umm Haram. The mosque has long been a destination for Muslim pilgrims from Cyprus and the Middle East, and is one of the few Islamic sites dedicated to a woman.

    With funding from USAID, the deteriorating mosque underwent restoration. Starting in 2001, the project brought together the island’s physically separated and estranged Greek Cypriot and Turkish Cypriot communities. They worked side-by-side to preserve a site they both cherish that symbolizes the island’s multicultural heritage. Under the direction of Dr. Salei Lamei from the Center for the Conservation and Preservation of Islamic Architectural Heritage in Cairo, work on the site was completed in December 2006. Now the restored site can be safely enjoyed by visitors, Cypriots, and pilgrims.

    So, separation of church and state, is that only in country or outside as well?

    PS: Don’t really care if it’s a mosque, a church or synagogue.

  12. We need some activiists from SIU to go down there to Bald Knob and hang a large copy of the Constittution on that Cross. I wonder if cross dressers have standing to sue the government when they wont let them in the Army. We only do cross dressing at our house at Tanksgiving. Not Xmas.

  13. Hopefully everyone has read Jeffrey Toobin’s new book about the Roberts Court, available at your local library. In it he points out how the Chief Justice uses rulings against ‘standing’ to keep issues like this out of his court. He wants to avoid ruling on this case based on the Constitution so he uses some procedural rule to deny a hearing. Of course, in Citizens United, he ignores the rules and precedents and pushes the case through regardless of the standing. The Roberts court is a dangerous one.

  14. “By tightening the requirements to bring constitutional litigation, the Court was yielding to the conservative temperament of Sutherland who lead this conservative block of 4 on the Court.”

    Massachusetts v. Mellon was 9-0. When you write that the Court “yielded” to J. Sutherland, are you saying that 4 Justices (the conservative block) or 8 (all those who voted with J. Sutherland) did not vote based on their own views of what the Constitution requires?

  15. SteveM if I recall correctly the dems did not want Roberts but Obama said he was a man of not sure if his exact word was integrity but someone who would think thru his decisions and therefore trustworthy as a Supreme.

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