*1 MERCIER, Ash, Elizabeth J. Sue Belcaster, al.,

Angela et

Plaintiffs-Appellees, EAGLES,

FRATERNAL OF ORDER 1254, Intervening Aerie

Defendant-Appellant, Crosse, of La Defendant-

Appellant. 04-1321, 04-1524.

No. Appeals,

United States Court Circuit.

Seventh 8, 2004.

Argued Sept.

Decided 2005. Jan. En Banc

Rehearing Denied 28, 2005.*

Feb. * Flaum, Judge Judges grant Chief Circuit rehearing Rov- en banc. ner, Wood, Evans, and Williams voted *2 Friedman, A. D. Peterson

James James Lafollette, Kahn, Godfrey & (argued), Madison, WI, Plaintiffs-Appellees. for (argued), Francis J. Manion American KY, Law & Justice, Hope, New Center La (argued), Patrick J. Houlihan WI, Crosse, for Defen- City Attorney, dants-Appellants. BAUER, MANION,

Before KANNE, Judges. Circuit MANION, Judge. Circuit forty in- years, For almost a monument (the with Ten Commandments scribed “Monument”) spot has Cam- occupied Park, public park in the of La eron (“La Crosse, Crosse” or Wisconsin “City”). Recently, certain residents of La Crosse, joined by advocacy group, sued City claiming the Monument violated of the the Establishment Clause First response, Amendment. Crosse sold park portion and the Monument to Eagles, organiza- the Order of the service originally that had donated the Monu- tion City. court ment to the The district held that this sale violated the Establishment reverse. Clause. We I. (or chapter

In the fall of local “Aerie”) Fraternal Order (the “Eagles”) requested permission (“Cam- Park to install in Cameron “Park”) granite monu- Park” or eron bearing an of the Ten inscription ment with certain Commandments and adorned religious symbols and other associated (an country grasping mercial eagle property, including a bank and a flag in American its talons the “all- restaurant. There are no governmental seeing eye” Park, most often associated with the buildings sight within and it is *3 bill).1 one dollar The La Crosse Park not necessary walk through past to or the at proposal Sep- Board considered the its Park to any governmental enter into build- and, 5, meeting tember 1964 October ings. 1964, gave the permission to erect parks The and recreation director chose in the Park. a very location for the Monument near the installation ceremony

The was scheduled northeastern of corner the Park. The Mon- to with Eagles’ Sixty-third coincide the placed ument is seventeen feet south from place Annual to in Convention take a bordering sidewalk park sixty the and June, Crosse in 1965. particular The loca- feet west from another sidewalk bordering tion of the Monument within the Park was park.2 Although there a walkway is left City’s to the determination of the di- through Monument, the Park and near the parks rector of and recreation. Monument, it runs behind the face of the Park occupies

Cameron one and one-half and a walking along visitor walkway in acres downtown La The Park Crosse. would inscription. not see the The Monu- by “neighborhood is classified as a ment occupy particularly does not a privi- park.” According City’s 1993 “Park leged location in the aesthetic scheme of Plan,” purpose and Recreation “the of a the Park. The attention of visitors neighborhood park provide is to attrac- Park is by not drawn to the Monument it tive neighborhood setting place and be being displayed particularly prominent in a primarily people used for for recreation (such as, instance, location setting or ages.” all La Crosse owns more than on a hill overlooking surrounding land- 1,300 designated parkland. acres of land as scape or at center of Park with parkland, fifty-six Of that are desig- acres walkways leading the visitor to Monu- parks. nated as neighborhood ment). The location of the Monument not, Park, near the corner of the Park was how- rectangular shape, is bor- ever, is, accidental. The by dered on three sides Monument and sidewalks and streets, construction, has been its by private directly and on one since side property. map Eagle’s A across from head- the Park shows that it Crosse quarters is walkways inscription intersected and dotted with and the Monument’s trees. The Park is surrounded com- headquarters.3 faces the 1. significantly The Monument at issue in this case is identi- west and sides its shorter run- cal to the monument considered this court ning north and We have with south. included Elkhart, (7th in Books v. F.3d 292 235 opinion map as the Park well as Cir.2000). fact, both monuments were pictures of the Monument. part program organized of the same Eagles. only difference the monu- below, pass- 3.As we describe attention inscription providing ments is the the name of ers-by night by at is directed to the Monument monument, city receiving the number Eagles' spotlight head- on the roof of the making presentation, of the Aerie quarters illuminates the Monument. presentation. history date of the For not, however, spotlight part This of the is Eagles’ program monument as well as fuller design layout provided of the Park and is at monuments, physical description of the see id. expense Eagles. is sole There at 294-96. Crosse indication in the record that La has (other above, approved passively), rectangular 2. than or coordinat- As indicated Park running spotlight. shape long Eagles, ed with its sides east and with the use of the

696 of the First Amend of the Establishment Clause approval after the April installation, La case was ment to Constitution. This but before from the flooding lack eventually severe 1987 for suffered dismissed high- hundred Several Mississippi Religion River. From Foun standing. Freedom area, as far Zielke, from dation, school students F.Supp. Inc. Milwaukee, help away (7th volunteered (W.D.Wis.1987), aff'd,845 F.2d efforts, particularly the flood-fighting Cir.1988). 51,000 sandbags. more filling of than later, than a decade June More “spe- in a efforts were recounted students’ again asked the the Foundation *4 newspaper. the flood edition” of local cial from Park. the The remove 1965, later, 19, the months on June Two September In City again Council refused. Participants Monument was dedicated. 2001, Secretary for the Aer- the La Crosse A. ceremony included Alvin dedication the City’s attorney to and offered ie wrote the Watson, La past a of the Crosse president display Monument and it to take back the Aerie, Lutheran a of the local minister public. in a location visible to the church, president a and judge, state the 2002, a City declined the offer. In March Park In his remarks dedicat- the Board. church also to move Episcopal local offered Monument, tribute to ing paid the Watson another the Monument to location. The helped fight the flood youth the who Finally, the the City again declined offer. next paper reported The local the April. to the Mon- Foundation also offered move the dedicated day that Monument “was Again, to location. the ument another young people who especially those 2002, City April the offer. In the declined helped during spring’s flood.” this City addressed the Monument Council twenty years Monu- For the next the controversy a passed and resolution. The (if any) controversy. generated ment little 1) that: was a resolution noted there (and today), the During through time by of a lawsuit the Foun- threat renewed the Eagles responsibility full assumed 2) dation, given Monument was the the the Mon- preservation and maintenance of City effort flood-fighting to honor the have Eagles ument. of the Members 3) youth, the Council believed the area planted and a small flower bed watered Constitution, Monument not violate the did Further, the surrounding Monument. the 4) the deserved to remain Monument night Monument illuminated at has been 5) location, and current the Council would the light attached to roof of the necessary steps Mon- keep take the Eagles’ building. expended has in its ument current location. maintaining funds in Monument. 2002, By June reached what it Grams, La Phyllis resident of to sell saw as solution decided Crosse, joined Appel- coordinating Eagles along with a Monument case, lee in this the Freedom From Reli twenty-two-foot twenty-foot by parcel of (the Foundation, “Foundation”), gion Inc. surrounding land under and the Monu- wrote a letter to the La Common Crosse ment. On June Crosse Council, be re asking that the Monument Parks recommended the sale Commission moved from Park. The denied Council parcel. of this request, and Grams and the Founda 1, 2002, Foundation, July joined On in the tion filed lawsuit United States fictitiously named filed plaintiffs, two District District of Court for the Western Wisconsin, against challenging suit dis- contending that location of Park. play the Monument in the Park violated the a sidewalk. The court later denied individual Assessor district had anonymously. proceed previously motion to plaintiffs’ determined that the fair market 7, 2002, twenty August additional indi- On $2,640 value of the parcel at issue was or Each plaintiffs. were named as viduals per square foot. The paid $6.00 plaintiffs the individual asserted essential- quitclaim amount. The deed record- They the same are all residents ly facts. ing the provided “appropriate transfer they Crosse and claim avoid the fencing, landscaping signage shall be presence Park because of the of the Monu- provided by and maintained in 10/24/02 ment, emotionally they are dis- youth order to commemorate of the La they turbed or distressed travel to when Crosse area for their assistance and great one commercial businesses sur- help for spring, 1965 flood that rounding presence the Park because City of La experienced.” Monument. 2002, the Eagles October erected a days Ten after the Foundation filed its four-foot-high par- steel fence around the suit, 11, 2002, July Council cel. Temporary signs were later added *5 vote, adopted, by a a resolution: au- 5-3 which read property “This is the of the La thorizing parcel; directing the sale of the Crosse Eagles Aerie 1254.” In March the Assessor to determine the fair 2003, temporary signs replaced these were value of and authoriz- parcel; market the with on permanent signs all four sides of Mayor the Clerk ing and to execute the stating, fence any necessary deeds to effectuate the sale parcel. the also The resolution noted property This is the the been Monument had dedicated to Eagles La Crosse fighters. the flood resolution cited as The authority parcel for the the sale of Wiscon- Aerie 1254 § Statute This grants sin 27.08. statute Dedicated to the volunteers who conjunction council city power, the city’s commissioners, park board of city helped of La save the park land land is no longer sell when that during the 1965 flood. park for purposes.4 needed the resolu- wording picture Below this is of volun- tion, the La Crosse Council stated filling sandbags teers during the 1965 parcel the was longer at issue no flood. park purposes. for needed later, City of One month the La Crosse

The sale to took Eagles place the fence, wrought erected a second this one August above, 2002. As indicated and, fence, high, iron like the four feet first of land plot roughly sold was immediately almost outside the fence twenty-foot twenty-two-foot area of (440 feet) erected On Eagles. Park the north and square where the Mon- south are plot signs. ument was located. This sides of this fence metal bordered signs high on three sides Park and on On black one side these ten-inch let- provides perti- purposes § drive pleasure 4. Wisconsin Statute 27.08 levard or within part: and, nent city approval or without with the (2) council, park The board of commissioners is em- of the common to sell or ex- powered and directed: change longer property required for (c) Subject approval to the of the com- purposes. its buy mon council to lease lands in the 27.08(2)(c). § Wis. Stat. park, city parkway, name of the bou- 698 discovery, the Eagles At the “PRIVATE PARK.” close of

ters is the statement statement, in four-inch black On summary judgment. moved for Febru Beneath this letters, “THIS PROPER- 3, 2004, words: ary are the district court denied the OR MAINTAINED and, TY IS NOT OWNED Eagles’ sponte, granted sua motion CROSSE, LA NOR OF BY THE CITY summary Appel in favor of the judgment ENDORSE THE RE- DOES THE CITY Crosse, lees. Mercier v. THEREON.” EXPRESSION LIGIOUS (W.D.Wis.2004). F.Supp.2d grant ing Appellees, summary judgment plain- and individual The Foundation again held that dis the district court “Appellees”) were (collectively, tiffs Park play prior at the The Appellees however. not appeased, after violation of complaint the sale of the sale the Es constituted amended their after the were again fences Id. at The plot, tablishment Clause. 1005-09. Appellees continued constructed. district court also held that the sale of the presence assert was, itself, plot regardless hap what sale, Park, violated the despite pened plot to Monument after was Establishment Clause. sold, violation the Es independent tablishment Id. at 1019. As in its Clause. agreed July court district decision, earlier court conclud the district judgment summary in favor granted only remedy ed that available was the Mercier v. of the Appellees. (W.D.Wis.2003). Crosse, plot invalidation of the sale of F.Supp.2d 961 City’s removal of Monument from Park. court held dis district *6 before to play appeal of the Monument the sale Id. at 1019-20. This followed. Eagles violated Establishment 972-74, that Clause, and the sale of at id. II. Eagles did not termi the Monument to appeal, City Eagles On and the chal violation, at id. The dis nate the 974-78. of lenge grant summary court’s district held the appropriate trict also court judgment Appellees.5 in favor of the Our was return of remedy the violation City review is McPherson v. de novo. of City and plot land to the remov of (7th 430, Waukegan, 437 379 F.3d Cir. from the al of Park. Id. at the Monument 2004). A summary to party is entitled 979. judgment in favor when “there is no its Shortly judgment formal was en- after genuine fact and issue of material that he however, Appellees,

tered in favor of the judgment or she is to as a matter entitled had not been Eagles, party who to 56(c); Id.; of law.” Fed.R.Civ.P. Celotex and, suit, moved to intervene at the Catrett, 317, 322, Corp. v. 477 U.S. 106 time, same moved the district court to (1986). S.Ct. 91 L.Ed.2d 265 The alter, amend, from, relief grant judg- parties agree there are no material Rules of ment under Federal Civil Proce- in only question, facts The there dispute. 60(b). 59(e) dure and district court fore, Appellees is are whether entitled that it agreed Eagles have should judgment to of law. as a matter suit, granted mo- party been to intervene, The First Amendment the Unit vacated its judgment, tion to Eagles provides, perti limit- ed States permitted and conduct Constitution part, “Congress nent shall discovery. ed make no Appellees, argu- that the consider 5. Because we conclude district court we need not summary concerning remedy. granting judgment erred to the ments the district court's

699 respecting rounding law establishment of reli- an indepen- was ” Const, I, .... gion U.S. amend. cl. 1. This dent violation of the Establishment Clause. Clause, provision, the Establishment In support of their position that the sale made applicable through States of the Monument and land to Fourteenth Amendment. Everson v. Bd. was constitutionally permissible, the Ea- Educ. the Township Ewing, 330 of of of gles City rely extensively on this 1, 15, U.S. 91 L.Ed. 711 S.Ct. court’s decision in Freedom Religion From (1947). Found., Inc. v. Marshfield, 203 years, recent this court has consid (7th Cir.2000). F.3d 487 Appellees ered in various gov contexts whether the argue response is not Marshfield display religious ernment’s use or imag controlling. We turn to itself Marshfield ery violates the Establishment Clause. disagreement. resolve this See, e.g., Ind. Civil Liberties Union v. (7th O’Bannon, Cir.2001); 259 F.3d 766 Elkhart, (7th A.

Books v. Marshfteld 235 F.3d 292 Cir.2000); Township, Gonzales v. North chapter the local Knights (7th Cir.1993); F.3d Harris v. Columbus, a Roman laymen’s Catholic Zion, Ill., (7th Cty., Lake 927 F.2d 1401 organization, donated Cir.1991); Congress American Jewish Marshfield, Wisconsin, a statue of Jesus (7th Chicago, 827 F.2d 120 Cir. Christ. Id. at 489. city accepted 1987). That is not precisely what we are gift placed the statue on land owned asked to resolve here. We are not con (and city. is) Id. The statue was cerned with whether the installation and height Christ, fifteen feet in “depicts presence of the Monument on land open prayer, arms standing atop a large (a municipally park) owned from 1965 to sphere, which in turn atop rests a base 2002 violated the Establishment Clause. bearing the inscription twelve-inch block Although the district court reached such a ” *7 letters ‘Christ Guide Way.’ Us On Our conclusion in opinion its order and grant Id. The statue overlooks “the main thor- ing summary in judgment favor of the oughfare south, into Appellees, neither the Marshfield from the Eagles nor the challenge that in holding clearly this court. and is visible to travelers from the road.” A years Id. few after the statue not, therefore, needWe decide whether installed, was a member of Knights the of display the of the Ten Commandments agreed help Columbus to Marshfield con- neighborhood park violated the Establish- tables, signs, picnic struct and outdoor assume, however, ment Clause.6 We will site, grills city at the and agreed the to the district court was correct in order to designate the property city park. as a Id. reach the issue that is before this court: city by provided whether the sale the also the site with the elec- plot of the of land tricity. underneath and sur- Id. Books, preme

6. this recently granted court held a Ten Command Court certiorari displayed ments monument constitutionality outside the of two cases consider the of municipal building Elkhart's violated the displays public prop Es Ten Commandments on Apply erty. tablishment Clause. at McCreary County, Ky. Ky., 235 F.3d 304. v. ACLU of Books, — U.S. —, ing 310, 221, in Indiana Civil Liberties Union v. 125 S.Ct. 160 L.Ed.2d O’Bannon, (7th Cir.2001), (Oct. 2004); 259 F.3d 766 this 2004 WL 2059432 Van Orden — —, display court held a Perry, Ten Commandments on U.S. S.Ct. grounds (Oct. 12, capítol the of the complex Indiana L.Ed.2d 2004 WL 2282082 2004). violated the Establishment Clause. The Su city forty years proper the statue was of was the Nearly after Marshfield because that installed, requested Foundation necessary performed formalities to Id. When the statue. city remove ownership sold parcel, transfer Foundation, refused, joined by a city fair “as- parcel price, for a and the Fund resident, city claiming the sued the local ownership.” sumed the traditional duties of park city-owned of the statue in a presence Id. at 492. Establishment Id. violated the Clause. held, however, This court also that de- filed, group Shortly after the suit was the formal spite property, sale of the “the (referred Marshfield residents proximity City property statue to “Fund”) from purchased as the Marshfield and the lack visual definition between city land and surround- underneath property percep- and Fund creates city Id. ing the statue. at 489-90. The improper religion tion of endorsement separated out the electrical service re- by and constitutes a violation of quired lighting statue from the cost lighting park, the rest of the at the Establishment Clause.” Id. 496. lighting paid cost of statue is parcel This court noted that the of land also city placed Fund. The a disclaimer dif- physically sold Marshfield was “not the location of stating near the statue surrounding public ferentiated from the not an endorse- the statue did constitute currently park, and visual boundaries religion. ment of exist that would inform reasonable but unknowledgeable observer Fund appeal Marshfield, plaintiffs On and, property that the sale a sham should be from argued distinguished was such, itself an en- the sale public park.” Id. at 494. This court also “constitute^ religion by City.” Id. at dorsement positioning noted that “the statue’s argued that the plaintiffs 491. The also combine physi- orientation with the other “the endorse- sale did not end convey impression cal features to religion, the continued ment of because city park property.” the statue is Id. at to a presence proximity statue 495. may reasonably per- still public park be remand, On this court instructed the City’s ceived as the endorsement of reli- court, together parties, district with the gion.” Id. at 490. way develop some be- “to differentiate Considering whether of the stat- the sale property tween the Fund owned proper, ue was court noted “[a]b- property City.” owned Id. at 497. circumstances, *8 sent unusual a sale of real remedy by reached the district court property way is effective is, coincidentally, on remand not similar to body inappropriate to end its endorsement steps by taken after its sale cautioned, at religion.” of Id. 491. We parcel at issue in this case.7 The however, given manipu- that of the risk installation, court district ordered the on standard,” lation in a a court “formalistic four-foot-high Marshfield’s property, of a must “look to the of transac- substance wrought-iron fence. Reli- Freedom From tion as well as form to determine Found., gion Marshfield, Inc. City endorsing whether action reli- of (W.D.Wis. 767376, at actually May 2000 WL *1 gion has Id. This court ceased.” 2000). by City fence, that held the sale of Attached to the statue the district remand, Foundation, Found., plaintiff Religion City 7. On dom From Inc. v. Marshfield, (W.D.Wis. proposed remedy Marshfield, ten-foot 2000 WL as at *1 9, 2000). masonry surrounding May wall Free- the statue. signs, Appellees, however, of two court ordered the installation misread reading, each considered not Marshfield. Marshfield just whether the restrictive covenant was Park

Private constitutional, but also whether the sale itself was a sham and constituted an en- property main- This is not owned or religion by City, dorsement of as well Marshfield, tained as whether the continued to violate nor does the endorse the reli- the Establishment selling Clause after gious expressions thereon. property private party. Marshfield, to a Id. The district court ordered that “[t]he 203 F.3d at 490-91. concluded Marshfield (10) text ‘Private Park’ will be in ten inch that the proper sale was and not an uncon- text subsequent block letters while the will religion. stitutional endorsement of Id. at (4) be four inch block letters.” Id. 491. fencing signs Recall that the installed (even point Crosse is identical to the above, Appellees As noted attempt having lettering) the same-size to that to discount claiming the Marshfield court in ordered the district Marsh- only case concerned whether the sale inex- tricably

field. entangled the pri- (and statue) vate owners thus the because B. The Present Case required a restrictive covenant private (and above, parties As noted owner to maintain the property park. as a court) dispute significance district It is true that the court Marshfield Eagles and the ar- Marshfield. concluded that the restrictive covenant did gue judgment that compels Marshfield improperly entangle City, not but this their favor. Quoting court’s statement further, holding court went that the sale “[ajbsent that unusual cir- Marshfield itself not did constitute an unconstitutional cumstances, a property sale of real is an religion. endorsement of at Id. 491. This way public body effective for a to end its court also held that independent “our re- inappropriate religion,” endorsement of id. view of the facts here leads us to conclude at City argue that validly extinguished any gov- that this sale there are unusual circumstances to call religion.” ernmental endorsement of Id. into question the sale. “[ajbsent at 492. also stated that un- We Conversely, Appellees argue circumstances, proper- usual a sale of real not controlling because that Marshfield ty way public body is an effective for a only city case considered whether the re- inappropriate end its endorsement reli- “excessively entangled mained with the Thus, gion.” although Id. at 491. Marsh- private owner because a restrictive cove- original placement focused field nant required private owner main- the statue and whether the sale rectified tain the property park.” Marshfield violation, the Establishment Clause address, according Appellees did not case made also clear the sale *9 (and court), the district whether the sale parcel permissible was under the Estab- itself, in particularly light competing lishment Clause. private offers to relocate the Monument to case, present In the executed for, Crosse property, preference demonstrated a of, just assumption such a sale. that religion and therefore an On endorsement City. placement the Monument’s in a They claim this selective sale violation, independent park constituted an violation of the constituted a constitutional in Marshfield, Establishment Clause. line with the sale would (2000) 315, 120 2266, 147 L.Ed.2d 295 “en- S.Ct. La Crosse’s have ended appear to Donnelly, But district 465 U.S. (quoting Lynch religion. dorsement” (1984) argue, now held, Appellees L.Ed.2d 604 and the 104 S.Ct. court existing (O’Connor, J., ended concurring)) (“Every gov if that sale that even violation, for sale caused the reasons in its practice judged must be ernment a violation. commit second City Books, to ....”); circumstances unique faced knew that it was City The Council true for at 302. The same holds F.3d of the seeking the removal with a lawsuit Simply because to end a violation. efforts theory that the location on the Monument that the sale we find this case violated the Establish- the Monument not violate the Es City of La Crosse did sepa- it had three Although ment Clause. mean, as does not tablishment Clause church, (from a Eagles, rate offers clear, every that such made Marshfield Foundation) Monument to to move the Here, are permissible. be we sale would location, the Council instead a different property in upon focused the sale of the site to the the Monument chose sell undertaken to re response litigation longer Although Eagles. undis move a monument that has stood Appellees claim that parcel, owned forty governmental property for turbed on members knew because the Council years. endorsing are not a non-reme We in its keep the sale would patches off designed dial initiative to sell location, the sale itself favored challenged religious land to various de Monument, religious purpose circumventing nominations as a means of that act was unconstitutional. and thus therefore the Establishment Clause. We with, Appellees have no begin To reject was a violation the idea the sale this assertion. The legal precedent simply be of the Establishment Clause place can- keep desire options. had other cause automatically be labeled constitution- not sale, however, satisfy the must still always option, Removal is an al violation. requirements Marshfield, namely, there holds, it is not a neces- but as Marshfield must be no unusual circumstances sur- First Amendment chal- sary solution to a rounding parcel the sale of the of land so approved lenge. The court Marshfield religion. as to indicate an endorsement of obviously an the sale when removal was highlighted typi- some “of the Marshfield complaint that the option, Appellees’ so the improprieties might cal cause sort wrong exercised the Crosse disregard Id. at 492. us transaction.” option contrary holding Marsh- include a sale improprieties Such would field. applicable state comply that did not with short, authorized Marshfield land a munici- governing law the sale of an to removal—a sale that did alternative id.; purchaser pality, sale to straw This not involve “unusual circumstances.” continuing power with to ex- left the mean, Appellees suggest, does not as the or a ownership; ercise the duties of sale valid, every that if the La sale is resulting fair market value well below religious where a dis public space sale of gift religious organization. to a Id. permissible. located would be play is case, complied sale Wis- Court, court, em Supreme and this have Eagles paid consin state law case-by-case nature of a phasized the rate, as determined market alleged court’s review of Establishment See, also assumed the Fe Inde Assessor. e.g., Clause violation. Santa *10 Doe, ownership. Although duties of pendent School Dist. v. 530 U.S. traditional Obviously, city fact that the ment. a could not sell point to the Appellees the solely Eagles, to the space City land was offered under the dome of its Hall or the Marshfield, true in where was also the sidewalk front of the courthouse alterna- City of Marshfield did not solicit be, face, steps. Such sale would for the statue. Id. tive bids Instead, sham. the in a neighbor- location park gov- hood nowhere near the seat of Moreover, any to the extent facts differ separated ernment the Monument from Marshfield, facts in materially from the scrutiny” “particularly the careful they militate favor of conclusion Moreover, parcel required the sale of the of land court Books. the by City constitutionally was parcel particularly prominent is not within example, City For had an permissible. not, layout of the Park. It is as men- historical reason —the 1965 flood and the above, tioned set at the heart of the Park city youth helped protect who particularly prominent or location —for keeping place. the Monument in And the where the sale would the design eviscerate Eagles, headquarters whose were located layout. or plan By selling the Park’s directly across the street from the Monu- Monument, parcel around the ment, it at would continue to maintain suddenly deprived has not visitors to expense City. to the While the historical the Park of normal and enjoyment. access remain, would the sale would extri- benefit Visitors to the Park remain free to utilize any perceived cate from endorse- park grounds, way much the same religious wording on the Mon- ment of the twenty by than before the sale. Other may unique features be ument. These around twenty-two-foot-space fenced Crosse, they but do not entail the Monument, space which has occupied that would other- “unusual circumstances” forty years, to the Park is not access type legitimate override the sale wise by now-private parcel. limited by approved Marshfield. addition, buyer parcel has a of the Monument is also The location long-standing important relationship and significant. parcel sold is Eagles, of with the Monument. It was the in, near, any governmental not located or course, who donated the Monument building. Residents of La Crosse do not place Eagles in the first and it is the court pass by the Monument to attend who have maintained the Monument. Sell- fines, hearings, pay government meet with Eagles, rather ing the Monument any employees, participate officials or it, removing practical also than makes way in civic affairs of La other Crosse. is, head-quarters and Eagles sense—the Park Although proper- Cameron is been, directly the street long has across not, ty, park it and is like a court- is will from the Monument. The members house, or even the capítol building, carefully maintain the site. also continue complex, “a set- grounds government presence ting where Finally, ignore we cannot the somewhat pervasive inescapable.” American distinguish extensive effort made to Congress Chicago, 827 Jewish the Park. As now-private property from Cir.1987). (7th Books, F.2d above, parcel we stated is surrounded Cf. (“[We subject] particu- 235 F.3d at 305 signs, adorned six four of two fences larly scrutiny displays careful at the seat by the parcel which state the is owned government.”). flood, and refers to the 1965 parcel that state the is not owned two selling property is not inex- signs also disclaim tricably govern- City. These last two linked with the seat *11 704 argue not that the sale Appellees of the Monument do

any endorsement entangle- would an excessive Contrary [] to the district court’s state- “foster City. Books, at many religion.” how fences or ment with 235 F.3d that “no matter ment is, all, build, [Eagles] divesting it is 301. The after itself City and the signs that impression parties of a monument that assume to defeat the impossible part City’s of the violated the Establishment Clause when it monument is still 1019, ground. im- our at- F.Supp.2d at was on We focus property,” 305 therefore, tention, longer prongs is no on the first two pression that the Monument the sale had a City’s property could not be the Lemon test —whether part of purpose secular and whether the sale’s any Any person reasonable walk- clearer. (either primary in front or effect was to advance or inhibit ing past behind) quickly recognize religion. will

Monument, past history, is whatever its determining particu whether In property not the of the of La Crosse. affecting religious lar action Therefore, clearly the stan- this sale meets symbol purpose, govern has secular in dards set out Marshfield. purpose of its is ment’s characterization assuming that Even Indep. to deference. Santa Fe entitled Marshfield control, Dist., 290, 308, does not the sale of the Monument 530 120 S.Ct. Sch. U.S. land satisfies the Lemon test. 2266, Courts, however, 147 L.Ed.2d 295. Kurtzman, 602, Lemon v. 403 U.S. 91 government’s must ensure that the charac (1971), 745 S.Ct. 29 L.Ed.2d Su Initially, impor sincere. it is terization is three-part preme adopted a test for Court emphasize tant to that in this case we are analyzing Establishment Clause cases. purpose with concerned behind the applied the Lemon test has been Although purpose sale Monument not challenges place constitutional said, originally being when installed. That religious symbol public prop ment of a purpose the Monument has which in a erty, applied challenge it has not been forty years in the Park for remained Nevertheless, to a the Lemon stan sale. understanding why in important addressing in dards are instructive keep would choose to it where it was rath Appellees’ claim of an Establishment it er than allow to be removed. violation.

Clause Books, explained As this court in there test, many Lemon a court con was a national

Under the effort to distribute as 5,000 sidering whether a state action violates the as monuments of the Ten Command- (1) many throughout country, Establishment Clause “must consider ments in government activity ques cooperation Eagles. whether the them in with the (2) purpose, may purpose tion has a secular whether the Whatever have been the activity’s primary accepting effect advances or inhi (3) religion, govern whether the bits from the time of its dedication activity ment appears fosters excessive entan 1965 the Monument to have taken Books, glement religion.” significant 235 F.3d at on a local meaning the wake Lemon, 612-13, (citing forgotten. 301 403 at 91 of not U.S. the flood. This was 2105). sale, action authorizing S.Ct. “State violates the Es its resolution well satisfy any recording if it tablishment Clause fails to as the restriction the deed sale, prongs.” Aguillard, of these Edwards reaffirmed the efforts 578, 583, youth during volunteers the 1965 flood. U.S. S.Ct. (1987). Books, however, L.Ed.2d 510 Unlike where on the eve

705 donor, they logical indicated nal' so would be the city council first litigation the purchaser. in that case had a The sale allowed the Monu- monument the across, Books, at 235 F.3d ment to remain intact purpose, see the secular from easy effort of La Crosse for headquarters the volunteer with access continu- City during youth protecting parcel. Additionally, in al maintenance of the during the expressly above, stated 1965 -floodwas as discussed the location is nowhere gift as a-reason for 1965 dedication government, near the seat of so there Eagles. City to the the Monument carving would be no unnatural out of a property from piece what would other- . a rather obvious secu- City also had obviously grounds city wise be the of a hall to elimi- lar motive for the sale—it wanted or courthouse. these historic and Given.all in Monument to ownership its nate reasons, person secular no reasonable using it litigation accusing preempt would believe this sale was to advance message religious to endorse a this, All religion. coupled when by displaying public property. it on authority established under reason is not sec- Appellees claim Marshfield City and the extensive efforts taken could have avoided ular because separate any religious from itself mes- allowing by simply removing or the lawsuit convey; sage might the Monument would else to remove the Monument. someone suiely any overcome doubts a reasonable it and They removing claim that not might have once he or she observer views City property leaving it on what had been fencing multiple signs the double sur- City’s motive was demonstrates that rounding the Monument. above, But we stated not secular. have cases, clear that in most makes legal meeting Marshfield addition to stan- remedy potential can Es- Clause, dards of the Establishment by selling the tablishment Clause violation practical goal. sale achieves a religious monu- property real where the completely able to extricate itself from the option, was an ment sits. While removal implied purpose endorsement of the By selling also was the sale. the Monu- so symbol, religious yet content of the endorsement, perceived ment site to end Monument can remain the location it option an that served a exercised occupied many years. for If the local has purpose. secular symbol point citizens at some want use, way moved to make alternate Finally, property the sale of the did political can found in the the solution be “primary principal not have the effect process. legal rather than the Books, advancing religion.” 235 F.3d added). (emphasis prong, at III. City, our focus is not on the intent of the threatening the litigation In the face of person, ap a reasonable but on whether of a monument of the Ten Com- presence surrounding prised of the circumstances public park, in a of La mandments sale, the sale would conclude to sell that Monument and Crosse decided religion. to an endorsement of amounted surrounding 1355; parcel of land small Lynch, 465 U.S. at S.Ct. that had donated Books, 304; group Monument to the Marshfield, 203 235 F.3d at years City forty ago. the Monument person, at 493. A reasonable consid F.3d clearly pleased everyone, not This sale has ering history of the monument recited likely entirely please anyone. not above, City’s desire and it did would understand the however, was, constitutionally appropri- loca It keep original court is The decision of the district Moreover, origi- were the ate. tion. case is remanded so that claimer seems to me to be taken from a reversed may enter an order of the district court scene the movie “The Wizard of Oz” wizard, summary judgment favor of the phony which the whose has fraud *13 Eagles. exposed, been directs the onlookers to “pay no attention to that man behind the Reversed curtain;” a disclaimer that is no more or BAUER, Judge. respectfully I Circuit less effective than the disclaimer at the dissent. monument. It too is an obvious sham. that, accepts premise

If one The admonition of the Constitution action, the authorities of the present of church separation creates the and state effectively of La Crosse has disassociated any entity forbids from en- City from an endorse- themselves and the endorse, dorsing, seeming religion or religion by sponsoring a monu- ment prevent but does not at all individual mem- Commandments, of The Ten the ma- ment aup government entity bers who make jority quarrel is hard to with. But opinion loudly announcing from or practicing their it I the District Court had believe deep religious They convictions. can place City actually right; the actions of the show displays private property, put on their reli- separate itself from a stubborn refusal gious symbols bumper on the stickers of display purely religious of a monu- cars, symbols religious their wear on their Having problem by created a ment. even, clothing by living up to the a monument of original permitting act of admonitions of the commandments in their displayed The Ten to be Commandments show, personal political lives their any observer public property with what example, their deep commitment would have to conclude was endorse- religion they of their choice. What cannot of the command- message ment of the is, action, spend do word or public ments, that I elected solution money endorsing seeming or to endorse on think borders on fraud. government agency they rep- behalf of the fact, carefully I am aware of the set out resent, any an endorsement of religion. majority opinion, that a disclaimer belongs The monument on what is obvious- has been set next to the monument which ly private property setting. or a church It exactly originally remains where it was belong does not where it is. placed public unquestionably on what was And, I story, recall the when asked property, by public property, surrounded whether the law of God or the law of man purposes and for all intents and is still follow, was law to the answer public I am that a property. also aware was, Christianity founder of “Render unto tiny transfer of a share of the do- things Caesar the that are Caesar’s and to and, main to if a was recorded things God the that are God’s.” Neither inclination, passerby had the time and he religion requires God nor an endorsement she could consult the official records from Government —nor per- does the law verify ges- Recorder of Deeds to mit it. Moreover, majority opinion ture. as the out, I points finding a disclaimer out that would affirm the and order of sets City is not endorsing anything. The dis- the district court.