(RNS) — It’s a shrine on public land.
The Pere Jacques Marquette Shrine was put up in the 1950s to honor a missionary who may have died there, or maybe not. There’s no real evidence to suggest the spot is special, and, wherever he was first interred, Marquette was reburied in the nearby town of Ludington, Mich. In December, the Freedom From Religion Foundation pointed out that the shrine, as it has always been known and which takes the shape of an enormous cross atop a hill, is unconstitutional. The shrine was quickly rebranded as a “memorial” and the citizens rallied around it.
Shrine or memorial — and I lean more toward shrine, given the “pilgrimages” people once made to it — no court of final resort has ever permitted a giant Christian cross to remain on government property. Such crosses, without exception, are declared unconstitutional when challenged in court.
What might tempt a small Michigan town to fight a battle that the courts have already decided it cannot win?
Well, if the city thought it had nothing to lose it might be willing to take an inevitable defeat before a judge.
And along came a spider. Enter the American Center for Law and Justice. The ACLJ is a religious ministry, complete with sophisticated fundraising machinery, rolled into a law firm.
The ACLJ claims to be for religious liberty but might more accurately be described as promoting Christian supremacy. It gave the game away when it opposed the Park51 mosque, even suing to stop what it dubbed the “Ground Zero mosque” because “This is not a religious freedom issue. … IT’S AN AMERICAN ISSUE,” as one ACLJ email read. The ACLJ also adamantly opposes any attempt to keep state and church separate, which undercuts its professed mission because freedom of religion only exists when our government is free from religion.
The ACLJ promised the town that it would defend the massive cross shrine on public land from any legal challenge, pro bono. “We do not charge you a penny,” said the ACLJ’s attorney to the township’s governing board at the last meeting.
Pro bono? Not even a penny? The old adage holds: This sounds too good to be true. And it is.
ACLJ might not charge the Michigan township, but fighting a losing legal battle could still cost taxpayers a pretty penny, hundreds of thousands of dollars actually. That’s because the town is still liable to pay the other side’s attorneys’ fees when it loses. This makes sense; governments shouldn’t be defending obviously unconstitutional actions in court, and the fee-shifting is meant to dissuade them from doing so. And remember, no government has successfully litigated a cross on public land.
Meanwhile, the ACLJ, which pulled in more than $50 million in 2015, will combine this case with a healthy dose of fearmongering to rake in the cash. If the ACLJ were serious about standing up for the town, it wouldn’t just offer pro bono representation, it would offer to cover all the costs associated with the case. This has never happened.
In fact, several local governments have been pushed into dire financial straits because of these pro bono offers from Christian-right law firms. Governments have had to take out loans, turn to crowdfunding and beg for money from national organizations such as Focus on the Family. The fundraising appeals have always fallen short, keeping the burden on the taxpayer. Here are a few examples:
The ACLJ represented the Enfield Board of Education (in Connecticut), which held graduations in churches. That violates the First Amendment. The board chair “was contacted by the ACLJ and they wanted to represent (the board) pro bono.” The school district insisted on litigating the case, and the plaintiffs racked up “about $1 million” in legal fees. The board settled the lawsuit after losing a preliminary injunction and was responsible for those fees, though it did not disclose exactly how much was paid. (The ACLJ says it was no longer legal counsel for Enfield Schools at the time the case settled.)
The city of Bloomfield, N.M., put up an unconstitutional Ten Commandments monument. The city accepted pro bono help from an ACLJ-like group, the Alliance Defending Freedom. ADF’s offer was used as evidence in the complaint to show the religious purpose of the monument, and while ADF “agreed to do all the work on this for the City at no charge,” the city was still saddled with a $700,000 bill in December. The legal bill was so steep, the city is considering online crowdfunding sites, such as GoFundMe, to pay it off.
Fundraisers didn’t work for Kentucky’s McCreary County. It lost a lawsuit challenging a Ten Commandments display in a courthouse. Mat Staver of Liberty Counsel — yet another ACLJ/ADF-like group; there are many, given how profitable such operations can be — represented the county pro bono. Fundraising efforts, including sending requests to “national religious organizations, such as Focus on the Family and the Trinity Broadcasting Network” and local Christian radio broadcasters, raised less than 10 percent of the more than $220,000 the county owed.
In a sister case, also in Kentucky, Staver and Liberty Counsel represented Pulaski County. It was forced to take out a loan to pay the ACLU $231,662. A local paper reported that “Staver stated that the battle is costing Pulaski taxpayers ‘zero’ dollars, since Liberty Counsel is working ‘pro bono’ for the county governments.”
Which brings us back to the Pere Marquette Shrine. This fight could easily cost the town between $500,000 and $1 million, even with pro bono legal help.
And this raises another question: Why? Why would a group of sophisticated lawyers —ACLJ’s founder, Jay Sekulow, now represents President Trump — pick a fight that they have almost no hope of winning? Cui bono, not pro bono, is the operative Latin phrase. Who benefits?
The ACLJ does. The ACLJ is picking a losing fight on purpose. It can fundraise off the Christian persecution narrative and, when the judge decides against the town and awards hundreds of thousands in attorneys fees to the other side, the ACLJ doesn’t have to pay a dime. The taxpayers shoulder all the risk; the ACLJ reaps any reward. For the ACLJ, it’s a win-win; for the township, it’s a surefire loss.
This small Michigan town should refuse the ACLJ’s offer just as it would refuse to make a deal with the devil. The town will be much better off financially and do a better job of complying with the Constitution.
 Peter Irons, The Steps to the Supreme Court: A Guided Tour of the American Legal System, 175 (Wiley & Sons, 2012).
(Andrew L. Seidel is a constitutional attorney and director of strategic response at the Freedom From Religion Foundation, a national state-church watchdog and nonprofit with 32,000 members. The views expressed in this commentary do not necessarily reflect those of Religion News Service.)