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Judge Tosses Atheist’s Suit Over Downstate Cross

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Rob Sherman

Atheist political activist Rob Sherman. (Credit: CBS)

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ST. LOUIS (CBS) – A federal judge has tossed a Buffalo Grove atheist and political activist’s lawsuit, which sought to force the return of a state grant that helped pay for restoration of an 11-story cross that is considered a landmark in southern Illinois.

The ruling by U.S. District Court Judge Michael McCuskey, central Illinois’ chief federal jurist, sided with the state and the caretakers of the Bald Knob Cross of Peace near downstate Alto Pass. He upheld the recommendation of federal magistrate David Bernthal, who last week rejected Rob Sherman’s argument that the $20,000 grant was unconstitutional.

Bernthal ruled that the grant was made by the state’s executive branch and was not a designated legislative “earmark” as Sherman had alleged. Bernthal also found that the state’s economic-development agency has discretion in how it doles out its money.

Bernthal first made his recommendation in December, then reaffirmed the decision late last week after considering additional arguments from Sherman.

Sherman pledged to take the matter to the Chicago-based 7th U.S. Circuit Court of Appeals.

“The decision by (the two federal judges) reminds me of an old ‘Three Stooges’ movie where one of the stooges says, ‘I can’t see, I can’t see.’ Another stooge says, ‘Why not?,’ and the other replies, ‘I’ve got my eyes closed,”‘ Sherman said after learning of McCuskey’s ruling.

Sherman said he wasn’t surprised that McCuskey didn’t detail his decision in the ruling, saying “the facts of the case completely contradict what the magistrate judge and the district judge are saying.”

A man who answered the phone at the Bald Knob Cross said no would be available to discuss McCuskey’s ruling until Tuesday evening, when a new governing board for the landmark was to be seated.

Sherman sued last August, 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.

On his Web site, Sherman points out that the state constitution says, “No grant of money shall ever be made by the State for any sectarian purpose.”

He says this conflicts with the Bald Knob Cross of Peace organization, which operates the property where the cross stands, and says in its bylaws, “The purpose of this organization shall be to maintain and develop the Bald Knob Cross monument and its properties in ways that advance and are consistent with the principles and values of the Christian faith, for which the monument stands as an iconic symbol.”

The cross is a concrete structure covered by white porcelain panels and can be seen for miles.

Located about 10 miles south of Carbondale, the cross 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 since 1963, standing 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 tiles fell into disrepair, prompting its caretakers’ feverish bid to raise funds for a $500,000 restoration that’s nearly complete.

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

Sherman has also led a lawsuit to overturn an Illinois law requiring a daily “moment of silence” in the state’s public schools, but last month a judge lifted the injunction blocking that law from taking effect.

(TM and © Copyright 2011 CBS Radio Inc. and its relevant subsidiaries. CBS Radio and EYE Logo TM and Copyright 2010 CBS Broadcasting Inc. Used under license. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed. The Associated Press contributed to this report.)

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