Ten Commandments of Fargo Survive Appeal


     FARGO, N.D. - A decades-old Ten Commandments monument in Fargo's Civic Plaza does not represent a government endorsement of Christianity, the 8th Circuit ruled.
     The Red River Freethinkers have been fighting the monument since 2002 when the city rejected the nonprofit's proposed donation of a "sister" monument containing text describing religious freedom.
     After the Board of City Commissioners voted to reject the new donation, Fargo opted to appease all parties by moving the Ten Commandments monument on to private property. For the previous 50 years, the monument donated by the Fraternal Order of Eagles, a nonreligious civic group, had sat unopposed in a grassy, open area mall in the city.
     The proposed relocation sparked community backlash, and more than 5,000 citizens signed a petition for an ordinance stating: "A marker or monument on City of Fargo property for 40 or more years may not be removed from its location on City of Fargo property."
     While many supporters of this ordinance cited their Christian values, others insisted that the monument should stay put because it "has been at its current location for a long time."
     Fargo adopted the ordinance and left the monument on its original site. A month later, the city adopted a new ordinance forbidding any additional monuments in the Civic Plaza location.
     The Freethinkers sued Fargo in 2008, but a federal judge dismissed that complaint for lack of standing. After a 2012 reversal by the 8th Circuit, the court revisited the case on the merits and found the monument permissible under the establishment clause.
     In affirming 2-1 Monday, the 8th Circuit cited the 2005 decision in Van Orden v. Perry, in which the U.S. Supreme Court found a Ten Commandments monument stood as a testament to an area's cultural history rather than as a religious statement.
     Citing a different U.S. Supreme Court case, Pleasant Grove City, Utah v. Summum, the Freethinkers had claimed that the Christian overtones to the petition movement changed public perception of the monument.
     But the 8th Circuit majority found that "the various motives of the petitioners who responded, did not change its meaning under Summum."
     "A contrary holding - that an establishment clause dispute itself can render a monument impermissible under the establishment clause - would 'encourage disputes concerning the removal of longstanding depictions of the Ten Commandments ... [and] thereby create the very kind of religiously based divisiveness that the establishment clause seeks to avoid,'" Judge Duane Benton wrote for the federal appeals court in St. Louis, Mo. "The district court correctly granted summary judgment that the monument does not violate the Establishment Clause."
     Judge Kermit Bye dissented because he found that the Freethinkers "have introduced sufficient evidence to raise questions of material fact for the matter to proceed to trial."
     He emphasized the fact that the city commission adopted the monument-supporting ordinance on its own, rather than put the matter to a citywide vote.
     "By adopting the ordinance as its own, then, the city commission prevented the general public from expressing its will," Bye wrote. "An objective observer could find this decision discredits the city's espoused purpose of respecting the will of the majority."
     Bye also noted how the commission rather hastily adopted the ordinance but treated the proposals submitted by the Freethinkers with marked delay.
     Another factor that indicates government endorsement of religion is that the commission acted to ensure that "the religious message of the monument continued to be displayed on government rather than private property," the dissent found.
     "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," Bye wrote.