City of Fargo Faces Suit Over Commandments

     ST. LOUIS (CN) – A North Dakota city may be liable for rejecting a monument that its atheist sponsors hoped would offset a display of the Ten Commandments, the 8th Circuit ruled.
     The Red River Freethinkers, a nonprofit that promotes atheistic or agnostic views, offered the secular “sister” monument after unsuccessfully challenging the Ten Commandments display in Fargo, N.D.
     Before the 2002 challenge, Fargo’s monument – donated by the non-religious civic group the Fraternal Order of Eagles – had sat unopposed in a grassy, open area mall in the city since 1961.
     The U.S. District Court for the District of North Dakota dismissed the 2002 lawsuit after finding that the monument had a secular purpose, that it contained an inscription describing its secular purpose, that it was placed in a perceived public forum, and that it failed to stir any other complaints or legal challenges in its 50-year history.
     But the Freethinkers filed suit again after the city’s subsequent actions appeared to “imbue[] the monument with an impermissible religious symbolism that had earlier been judicially declared not to exist,” according to the appellate panel’s summary.
     Deploying a new tactic against the Ten Commandments display, the Freethinkers offered the city a “sister” monument that described the nation’s history of religious freedom. They said the secular monument would be unnecessary if the city moved its Ten Commandments display to a private location.
     When the city commission voted, 3-2, to reject the Freethinkers’ monument and donate the Ten Commandments to a private entity, many community members voiced their disapproval.
     After receiving a petition to keep the Ten Commandments display in 2007, the commission reversed its earlier decision by another 3-2 vote. It adopted a new ordinance that barred the city from installing new monuments on the civic plaza.
     The Freethinkers sued Fargo again in 2008, but the District Court again dismissed the complaint, ruling that the group lacked standing to sue under the establishment clause.
     But a divided appellate panel reversed last week.
     “Freethinkers alleged and properly supported certain facts: The city displays a Ten Commandments monument; it has enacted an ordinance prohibiting the removal of that monument; no other monument is so protected; and the city has a policy of not accepting other monuments in the mall where the Ten Commandments monument stands,” Judge Roger Wollman wrote for the majority. “Put together, Freethinkers argues, these facts result in an establishment clause violation. The claimed injury – direct and unwelcome contact with the monument – is ‘fairly traceable’ to the alleged establishment clause violation. The magistrate judge apparently superimposed an additional standing requirement on Freethinkers – that Freethinkers ‘plausibly’ establish that the city commission had a religious motivation in enacting the ordinance. The Supreme Court has never held that a plaintiff must plead and prove a religious motivation on the part of the government as a necessary element of an establishment clause claim.”
     Judge Bobby Shepherd partially dissented, arguing that the case should not return to District Court. Though Shepherd agreed that the Freethinkers have standing, he said the court still had a basis to affirm dismissal.
     “Freethinkers’s argument is that by adopting the initiated ordinance, the city commission perforce adopted as its own the religious views of the ordinance’s proponents,” Shepherd wrote. “While subsequent events could change the nonsectarian nature of such a monument, when viewed in the context of the monument’s history and the views expressed by the members of the city commission, Freethinkers’s argument fails.”

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