Appeals Court Rules that a North Dakota Ten Commandments Monument on City Property is Legal August 27, 2014

Appeals Court Rules that a North Dakota Ten Commandments Monument on City Property is Legal

In 1958, the Fraternal Order of Eagles donated a Ten Commandments monument to the city of Fargo, North Dakota. Like many similar monuments across the country, no one complained for decades, whether out of ignorance that it was illegal or fear of repercussions.

(Image via Secular News Daily)

In 2002, a group of five individuals — all members of the Red River Freethinkers — filed a lawsuit to have it moved to private property because it was violating the Establishment Clause. In 2005, a judge ruled that the monument could stay put:

If the former observer views the monument he would quickly realize that the display originated from a private organization and was erected for a secular purpose, to celebrate the first urban renewal project in North Dakota history. However, if the observer is imbued with the full knowledge of the history of the display and of the land on which its sits, this Court concludes that he or she would be even more conscious of the secular nature of the monument.

The plaintiffs were disappointed but didn’t want to fight any more:

Our request was based on the First Amendment, on the principle that public space should be neutral toward religion. The principle is clear, simple, and fair. We regard the present decision as a step away from that principle and a weakening of First Amendment protections.

After that setback, the Red River Freethinkers offered to pay for their own secular monument to be erected nearby the Ten Commandments one. If you can’t beat ’em, join ’em, right?

Their monument would’ve had this description:

The city’s own attorney suggested saying no to the atheists, but moving the Ten Commandments display to private property to avoid further litigation. And that’s precisely what city officials decided to do, on a 3-2 vote.

Unfortunately, religious conservatives petitioned for the city council to reconsider its decision (which they are allowed to do). In 2007, council members reversed their previous decision, again on a 3-2 vote.

At the time, that meant keeping the Ten Commandments monument in place and creating a new policy regarding monuments on city property. Later that summer, they came up with a new policy:

No one else gets a monument.

So the Red River Freethinkers sued again, this time over the new exclusionary policy. But a lower court judge dismissed their challenge, saying there was no evidence the city was engaging in illegal religious expression (because the Ten Commandments are totally secular. Especially the parts about taking the Lord’s name in vain, resting on the Sabbath, worshiping false idols, and having no other God before God.)

The judge also added they didn’t have standing to bring this case since they had already done so before and lost. The Eighth Circuit Court of Appeals said they did, in fact, have standing and told the district court to reconsider its decision in light of that. The district court ruled in favor of the city.

I’m skipping over a lot of the legalese, but that all brings us to what happened this week. The case went back to the Appeals Court, and the judges there ruled 2-1 in favor of the city:

The petitioners combined “many small donations” of political will to sway the City. They expressed both religious and secular reasons to retain the monument. The Board of City Commissioners did not adopt a religious point of view, instead citing legal challenges, the City’s interest in ending anguished debate, and the importance of embracing and tolerating “all people.” By adopting the petition, the City did not “necessarily endorse the specific meaning that any particular [petitioner] sees in the monument.”

Judge Kermit Bye dissented from the ruling and offered a far more comprehensive explanation of why the decision made no sense:

the actions of the City Commission served only to ensure the religious message of the monument continued to be displayed on government rather than private property. The policy adopted by the City Commission then had the further effect of conferring on the Ten Commandments monument a special status as the only permanent message allowed in the Civic Plaza.

an objective observer could infer the City Commission intended to maintain the display of the religious message of the Ten Commandments monument on government grounds and confer on the religious message of the monument special status as the only permanent message in an area used for public assemblies.

For these reasons, I conclude the Freethinkers have introduced sufficient evidence to raise questions of fact for a trial, and I respectfully dissent. I would reverse the grant of summary judgment and remand for further proceedings.

The Red River Freethinkers can either drop the case or ask the full Appeals Court to reconsider the decision (in an en banc review).

When the Supreme Court ruled in 2005 (in Van_Orden v Perry) that a Ten Commandments monument in Texas was legal, Justice Stephen Breyer was the swing vote. That same day he ruled a different Ten Commandments monument on city property illegal. He noted that the difference between the two cases was that, in Texas, the monument had a secular purpose. It was donated by the Fraternal Order of Eagles (like the Fargo monument), had been around for decades (like the Fargo monument), and sat “in a large park containing 17 monuments and 21 historical markers.”

That’s the key difference. In Fargo, the Christian monument stands alone, and the city council refuses to let anything else get in the way.

That’s why the Fargo monument should be declared illegal. The Red River Freethinkers are right. There’s no word yet on whether they’ll pursue another challenge, though. After more than a decade fighting this battle, it’d be hard to blame them if they just decided to give up.

I reached out to the Red River Freethinkers yesterday afternoon for comment, and President Charles Sawicki sent me a brief statement from the group’s lawyer:

“At this point the only option is to request cert in the US Supreme Court — which could be granted due to the unique issues here. We would need financial help for that though due to the costs involved.”

We are discussing the situation.

Not sure why the Supreme Court is the next step rather than a rehearing from the full Court of Appeals. Either way, I’ll post updates as they come.

(via Religion Clause)

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