Judge affirms rejection of atheist's suit over landmark

Associated Press
Updated 2/7/2011 9:05 PM

ST. LOUIS -- A federal magistrate has refused to reverse his recommendation that an atheist's lawsuit over a state grant to an 11-story Christian landmark in southern Illinois be thrown out, standing by his finding that the state's economic-development agency has discretion in how it doles out its money.

U.S. Magistrate Judge David Bernthal, in an order returned last Friday and filed Monday in Springfield, let stand his December recommendation to toss out Rob Sherman's lawsuit, which asked the court to order caretakers of the Bald Knob Cross of Peace to give back a $20,000 grant received in 2008.


Bernthal's findings now will be customarily reviewed by U.S. District Court Judge Michael McCuskey, central Illinois' chief federal jurist.

Sherman of Buffalo Grove, who had claimed the handout from a $5 million pot of money that Illinois' General Assembly channeled to the state's Department of Commerce and Economic Opportunity was unconstitutional, said he remained undeterred by Bernthal's latest ruling, saying his legal fight would press on.

"Certainly we would have preferred that Bernthal had seen the light. But what he says is not dispositive; what McCuskey says is," Sherman said by telephone Monday, pledging to take the matter to the Chicago-based 7th U.S. Circuit Court of Appeals if McCuskey also rules against him.

Bernthal, in his recommendation Dec. 10, sided with the state and overseers of the landmark near Alto Pass, finding the grant was made by the state's executive branch and was not a designated legislative "earmark" as Sherman had alleged.

"Finding otherwise in this circumstance would interpose the federal courts as virtually continuing monitors of the wisdom and soundness' of state fiscal administration," Bernthal wrote then. "Additionally, such judicial oversight of executive branch activities raises serious separation of power concerns."

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At Bernthal's invitation, Sherman later added to his argument and said that because the grant was a legislative earmark -- not a discretionary allocation from the executive branch -- that funneled money to a religious site it also violated the U.S. Constitution's First Amendment prohibition against the establishment of religion.

But Bernthal was unswayed, writing in his latest order that while he carefully weighed Sherman's arguments, the magistrate's original recommendation was correct.

"While Bernthal is entitled to his opinion, we have provided copious and persuasive substantiation to our claims that this clearly was a legislative earmark rather than purely discretionary on (the state's executive branch)," said Sherman, who in filing suit last August claimed efforts to repair the cross using state money "has the primary effect of advancing a particular religious sect, namely Christianity."

Steve McKeown, the outgoing head of the Bald Knob Cross of Peace Inc., which operates the landmark, welcomed Sherman's latest legal setback.

"Anything that is going to assist us in our mission is a good thing," said McKeown, a southern Illinois pastor. "I would be lying if I said I'm not thankful this is not going well for Mr. Sherman."


The cross, about 130 miles southeast of St. Louis, was built in large measure with area farmers' profits from selling pigs. It has been a fixture on the 1,025-foot-high Bald Knob Mountain for a half century, standing sentry 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 half-million-dollar restoration that's nearly complete.

Friends of the Cross, the fundraising arm Sherman sued, has raised more than $400,000 since that group's inception some three years ago, eclipsing its goal by $100,000.

Sherman's exploits have included successfully suing to overturn an Illinois law requiring a daily "moment of silence" in that state's public schools.