Illinois Can Fund Cross Restoration, Court Says

CHICAGO (CN) - An atheist lacks standing to challenge Illinois efforts to restore an enormous cross that purports to be "the largest in the Western Hemisphere," the 7th Circuit ruled.

Though federal appeals court seemed skeptical of the superlative, it noted that the Bald Knob Cross in Alto Pass, Ill., is still a well-known local tourist attraction.

When the 11-foot Latin cross fell into disrepair, local citizens formed a nonprofit group called Friends of the Cross to raise money for restoration.

The group applied for state funds under a $5 million grant program the Illinois General Assembly created in 2008. The Illinois Department of Commerce and Economic Opportunity, which administered the fund, granted Friends of the Cross $20,000.

But one member of the state's atheist community took offense. After learning about the grant online, Robert Sherman filed a taxpayer suit against Illinois for allegedly violating the First Amendment. Sherman sought an injunction and rescission of the grant.

In dismissing the suit, however, a federal judge pointed out that the Supreme Court has held that taxpayers may challenge only "congressional action under the taxing and spending clause."

Sherman had tried to applying the doctrine at the state level by claiming that Illinois General Assembly "specifically selected" Friends for receipt of the grant money, giving him grounds to sue.

But the 7th Circuit disagreed, finding no evidence of legislative intent to fund the cross.

The $5 million lump-sum appropriation is part of a "member initiatives program" intended to fund pork-barrel projects of individual legislators, according to the court. Caucus leaders decide how money is distributed among individual members, who pass funds to their local districts. The Department of Commerce and Economic Opportunity mechanically distributes the funds at the legislators' direction.

"In reality, the general appropriation is a blunt 'means of exerting political discipline and dispensing patronage,'" Judge Diane Wood wrote for a three-judge panel, quoting an academic journal article about the program.

The grant "was not the result of legislative action," according to the court.

"Rather, it can be traced at most to the initiative of a single legislator," state Sen. Gary Forby, the ruling states.

Though taxpayer standing is thus foreclosed, Wood said the court would be unable to compel Friends to return the money even if that were not the case. Taxpayers may seek an injunction against only the unconstitutional disbursement of grants; they may not require private entities to repay the money.

"We are confident that the Supreme Court ... has no intention of allowing a taxpayer to pursue a claim for restitution against a private recipient of public funds," Wood concluded.

The court did not address the merits of Sherman's challenge.

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