ST. LOUIS — A Chicago-area atheist is using his last legal recourse in challenging the use of state funds to renovate a towering southern Illinois cross, but he acknowledges the odds are “pretty slim” that the U.S. Supreme Court will agree to hear the case.
Robert Sherman’s filing Tuesday with the high court came three months after the Chicago-based 7th U.S. Circuit Court of Appeals affirmed a lower court’s finding that Sherman lacks standing to sue over the $20,000 Illinois grant given in 2008 to the 111-foot-high Bald Knob Cross of Peace.
Sherman said Wednesday that it’s unlikely the Supreme Court — commonly considered “the court of last resort” — will agree to hear his arguments that using taxpayer money for the cross near Alto Pass, Ill., was unconstitutional. The high court last term accepted just roughly 80 of the some 7,500 appeals filed with it.
“The chances of them taking it are pretty slim,” Sherman told The Associated Press of the Supreme Court, which could accept or reject Sherman’s appeal as early as this fall.
In handing Sherman his latest legal setback in June, 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 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.”
Jeff Lingle, president of Friends of Bald Knob Cross, the landmark’s fundraising arm, said Wednesday he found Sherman’s latest appeal in the 2-year-old legal saga unsurprising. He argued the grant related to the landmark’s tourism and “doesn’t have anything to do with the religious aspect of it.”
“We face it with hope that everything falls our way,” he said. “We just have to go through it. We’re not frustrated or disappointed. We’re just keeping on.”
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. Lingle’s Friends of the Cross raised more than $550,000 since that group’s inception some four years ago.