by Gary Taylor
Red River Freethinkers v. City of Fargo
(Federal 8th Circuit Court of Appeals, August 25, 2014)
A stone monument depicting the Ten Commandments, which was given to the City of Fargo by the Fraternal Order of Eagles in 1958, has been the subject of over a decade of litigation. In addition to the Ten Commandments, the monument includes other symbols such as the American flag and the “all-seeing eye” atop a pyramid. In 1961, the monument was installed in its current location on the City Plaza, “a grassy, open area mall” on City property, where it sat without legal challenge for over forty years. In 2002, the Red River Freethinkers sued the city seeking a declaration that the display of the Ten Commandments violated the Establishment Clause of the First Amendment to the US Constitution. The federal district court found in favor of the city on the grounds that because of the purpose of the gift and the other secular symbols and messages on the monument “a reasonable observer could not perceive the city as adopting or endorsing the religious message of the display.” The court went further to state that “to exclude the request of a private organization, such as the Fraternal Order of Eagles, to engage in religious speech in a recognized forum on the sole grounds that their speech has religious content could arguably be a violation of their constitutional rights.”
Seizing on this language, the Freethinkers offered their own monument to the city with a request that it be placed near the Ten Commandments monument. It was to be inscribed:
THE GOVERNMENT OF THE UNITED STATES OF AMERICA IS NOT, IN ANY SENSE FOUNDED ON THE CHRISTIAN RELIGION
From the Treaty of Tripoli, Approved Unanimously by the United States Senate, June 7, 1797. Signed by President John Adams
Presented to the City of Fargo by the Red River Freethinkers in recognition of the First Amendment right of every American to believe, or not believe, in any god
The city commission voted to reject the Freethinkers offer, and in order to avoid litigation further decided to donate the Ten Commandments monument to a private entity, who would then move it to a location off of city property.
This caused a stir. many opposed this decision, and a petition garnering more than 5,000 signatures required the commission to either adopt, or submit to a vote of the people, an ordinance that simply stated:
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.
The city adopted the ordinance and left the monument in place. A month later, the city adopted a policy of not accepting any additional monuments for display on the City Plaza. The Freethinkers sued again, claiming that the petition, and the city’s reaction to it, had made the monument impermissible under the Establishment Clause. After jurisdictional issues were addressed, the district court granted summary judgment for the city. The Freethinkers appealed to the 8th Circuit Court of Appeals.
The Court of Appeals applied the standard announced by the US Supreme Court (USSC) for evaluating “passive monuments.” In that USSC case, a Ten Commandments monument stood for over 40 years on the Texas Capitol grounds alongside other (“17 monuments and 21 historical markers”) secular symbols. The USSC found that the monuments represented the several strands in the State’s political and legal history,” and that “the monument had a dual significance, partaking of both religion and government.” The 8th Circuit found the Fargo monument to be identical to the Texas situation in every legally relevant way. The Freethinkers argued that the Christian overtones to the petition movement changed public perception of the monument to one with a single religious message; however the Court of Appeals disagreed, noting that petitioners expressed both religious and secular reasons to retain the monument, and that the city commission cited the costs of a legal challenge and the importance of “embracing and tolerating all people” as the basis for its decision. By adopting the petition, the city did not “necessarily endorse the specific meaning that any particular petitioner sees in the document.” The Court of Appeals affirmed the district court and dismissed the Freethinker’s petition.
Judge Bye dissented. After reciting other details of the history of the monument (including the then-mayor’s statement at the 1961 dedication ceremony that the monument “would be a constant reminder to one and all that Fargo shall go forward only as it respects and lives according to the principles of the Ten Commandments”), Justice Bye noted several distinctions between the Fargo monument and the Texas monument, including: (a) unlike the Texas monument, no other monuments share the Civic Plaza in Fargo, (b) the city now has adopted a policy that no other monuments may stand in Civic Plaza, (c) Civic Plaza is flanked on three sides by public buildings, and sidewalks from the entrances to those buildings directly intersect at the monument. Judge Bye concludes from these facts that the city has rendered the Ten Commandments monument an “active monument” subject to a more stringent test, and that summary judgment in favor of the city was not appropriate.