Addendum to: Seventh Circuit Rules Against Jesus Statue

[Will Esser]

I thought a bit more explanation of the case was
required.  The case name is Freedom of Religion
Foundation v. City of Marshfield.

First, the park itself was designated as a park back
in 1964 solely for the purpose of housing this statue
donated by a member of the Knights of Columbus.  When
a citizen complained in 1998, the city erected a
disclaimer which said in part: "[t]he location of this
statue . . . does not reflect an endorsement of a
religious sect or belief by thecity of Marshfield."

Second, the 7th Circuit first addressed whether or not
the sale of the .15 acre to a religious foundation was
a violation of the establishment clause.  The court
found that there was no violation because (1) the sale
price was a reasonable price (actually more per square
foot than the city had ever received in any sale of
land); (2) the sale terms comported with applicable
Wisconsin law; and (3) the city no longer had anything
to do with the land (i.e. the Fund paid for all costs
including the cost of electricity for lighting the
statue).  The warranty deed of the land required that
the land always be kept for public use.

Third, the court then went on to apply the Lemon and
Capitol Square tests as to whether the location and
appearance of city endorsement constituted a
violation.  The 7th held that even though the land was
now owned by a private foundation, it remained a
public forum.  After this determination, it simply
applied the relevant precedent.

Since the statue was part of a public forum, the
question was whether or not this public forum was open
to all religious viewpoints.  The statue was the only
one on the private land and so, therefore, the public
forum discriminated against other viewpoints.

"[W]e find that by failing to distinguish the Fund's
land from the remainder of the park, the City has
granted the Fund preferential access to a public
forum, which violates the Establishment Clause. Thus,
under either the traditional reasonable perception
test
or the per se test advocated in Capitol Square,
we find that 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."

The court left it up to the district court to
formulate a remedy but suggested that building a fence
around the private land would be sufficient.

As far as I can gather, the biggest stretch that the
court made in its reasoning was holding that the land,
albeit private, was part of a public forum.  Without
that specific finding, the case falls apart.

I have serious concerns about the implications of such
a holding.  Any thoughts?

Will "So if I buy a piece of the sidewalk is it a
public forum?" Esser

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"Preach often; sometimes use words."  St. Francis of Assisi

Will Esser
Law Clerk - Tenth Circuit
Ad Majorem Dei Gloriam
http://www.geocities.com/Heartland/Trail/3096
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