SPRINGFIELD, Ill. (CN) - A federal judge refused to reverse his recommendation that an atheist's lawsuit challenging a $20,000 state grant to fix up an 11-story Christian cross be thrown out. U.S. Magistrate Judge David Bernthal says the Illinois Economic Development Agency has discretion in how it awards grants.
Outspoken atheist Rob Sherman, who is also fighting the state's moment of silence in schools law, claimed the $20,000 grant violates the First Amendment's separation of church and state.
"This court agrees with defendants that the grant bestowed to Friends of the Cross was made by the executive branch, and not the legislative branch," Bernthal wrote in his original recommendation on Dec. 10.
"On the face of plaintiff's complaint, the Illinois General Assembly made a large appropriation for grants to the department, and the department had discretion in distributing those funds. A general appropriation that leaves discretion to the department is not an express congressional mandate or a specific congressional appropriation."
U.S. District Judge Michael McCuskey, central Illinois' chief federal jurist, will review Bernthal's recommendation. Such a review is customary.
The 11-story cross, 130 miles southeast of St. Louis near Alto Pass, Ill., has been a fixture on Bald Knob Mountain for more than 50 years. It was mainly funded from the profits of pig farmers.
The cross has fallen into disrepair. Friends of the Cross, the fund-raising entity Sherman sued, raised more than $400,000 to rehab the cross.
Sherman told The Associated Press that he would take his fight to the 7th Circuit if Judge McCuskey refused to overturn Bernthal's recommendation.