A Wisconsin organization is still looking for a Wilmore citizen to act as a plaintiff willing to sue to remove a cross from a city-owned water tower.
No lawsuit has been filed since the Freedom From Religion Foundation of Madison, Wis., first raised the issue in late September.
The foundation, which represents atheists, agnostics and “freethinkers,” has asked Wilmore, a Jessamine County city of about 6,000 residents, to remove a lighted cross atop the city’s water tower.
The cross makes it appear that local government endorses Christianity, said Ryan Jayne, a lawyer for the foundation.
“It’s reasonable to think that if you’re not Christian, you’re not going to get the favored treatment that Christians might get in the town,” Jayne said.
Brian Beauman, a lawyer representing Wilmore, said in an email Tuesday that the city “does not disfavor any of its residents. To suggest differently is simply out of touch with any understanding of Wilmore’s citizens.”
In any case, Jayne said no Wilmore resident has come forward as a plaintiff willing to challenge the city in federal court.
A plaintiff must be willing to say that he or she has a personal legal interest or stake in bringing the issue to a court for judicial relief.
Many Wilmore citizens responded to the controversy by placing homemade wooden crosses on their private properties. Wilmore resident Lew Nagy said he quit counting after making 1,400 crosses for distribution to others.
“As long as people ask me for them, I’ll make them,” Nagy said.
Beauman wrote to the foundation in December that Asbury University, a Christian college on whose campus the city water tower stands, entered into a contract with Wilmore in 1976, and that the university owns the cross. The university continues maintenance of the cross to this day.
That background, Beauman wrote, “distinguishes this situation” from another in Whiteville, Tenn., which had a large cross on its water tower that was also lit up at night. In 2011 the Freedom From Religion Foundation sued that Tennessee city; the case was settled for $20,000, with the town paying for the foundation’s legal fees. (Whiteville removed one arm of its cross and agreed “not to install any other decorated or undecorated stand-alone cross on the water tower.”)
Last week, Jayne responded by saying that it is unconstitutional for the Wilmore cross to be displayed on city property, no matter who owns the cross.
Jayne cited a 1989 U.S. Supreme Court decision in which the justices said a Christmas nativity scene standing alone inside the Allegheny County Courthouse in Pittsburgh violated the constitutionally required separation of church and state.
“The fact that the crèche bears a sign disclosing its ownership by a Roman Catholic organization does not alter this conclusion,” the court said in its 5-4 ruling. “On the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than communicating a message of its own.”
In his letter, Jayne said: “The cross atop Wilmore’s water tower endorses Christianity. Any reasonable observer, aware of the city’s agreement with Asbury … would understand that the city has lent its support to this religious promotion. … A government entity’s promise to indefinitely keep a large, lighted religious symbol over its water tower is unconstitutional. The government cannot sidestep its constitutional obligations by contracting to violate those obligations indefinitely.”
Furthermore, Jayne noted that the city would not violate the contract with Asbury University by removing the cross.
“The contract only contemplates that the cross would ‘remain in operation for an indefinite period of time,’” Jayne wrote. “By its own terms, this purports to create a contract of indefinite duration. The city did not agree to maintain the cross in perpetuity. After 40 years of maintaining the cross, the city can remove it.”
Beauman said in an email that the city “is evaluating its response to the demands by an out-of-state public interest law firm. At the same time, the city must be aware of its duties to Asbury University under the contract which has been in place for 40 years without any complaints.”
Wilmore is home to Asbury Theological Seminary, was the longtime home of Ichthus, a Christian music festival, and was known for a 125-year-old summer revival known as the Wilmore Camp Meeting, which ended last year.
Lew Nagy, the cross-builder, said the water-tower cross “isn’t bothering anybody and it’s been up there for a long time. I feel so strongly about keeping that cross, I have one made out of a 2-by-4 in my yard.”