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May 29 2012

Appeals Court Grants Standing in Ten Commandments Case

The 8th Circuit Court of Appeals has issued a ruling in a very interesting case involving a Ten Commandments monument in Fargo, North Dakota, granting standing to a group called the Red River Freethinkers in a legal challenge to such a monument on city property. Like most other such monuments, this one was donated to the city by the Fraternal Order of the Eagles in the early 60s.

The procedural history of this case makes it fascinating. In 2002, Red River Freethinkers sued the city over that monument, wanting it removed, and the district court ruled against them. But in that ruling, one of the reasons offered by the court was that the public would “perceive the mall as a public forum,” where all groups were free to put up displays and that would be “less likely to be seen as the exclusive dominion of the state.” So the RRF decided to try a different tactic. If this is really a public forum, they should have the same access to it that other groups did and they submitted their own monument that read:

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 council, on the advice of their attorney, decided instead to move the monument to private property, but that set off a firestorm from local residents, who demanded that it remain on public grounds. A petition drive gathered more than 5,000 signatures urging the city council to stand firm and refuse to move the monument and to reject the Freethinkers’ monument as well. In July, 2007 the council adopted an ordinance prohibiting the removal of that monument from city property, and a month later voted to reject the Freethinkers’ monument.

That led to a second lawsuit, arising from the actions of the city after the first suit. But the district court ruled, bizarrely, that they could not bring that suit because it had already been tried in court and they lost — as if the subsequent legal actions of the city were meaningless and did not give rise to a new set of legal arguments. But they clearly did, of course, because the city had now legally and officially contradicted the public forum argument they had maintained in the earlier case. The judge dismissed the case based on standing grounds as well.

The 8th Circuit has now reversed that decision by a 2-1 vote. The dissenting judge took a truly warped position:

The Commission’s actions took place in the context of a long-established monument, one that had been judicially determined not to convey any Establishment Clause message. The Commission’s initial decision to move the existing monument from its long-standing site can best be understood as an exercise in pragmatism—one intended to forestall a challenge to its decision not to accept Freethinkers’s offer to erect a “sister” monument. In light of this background, no reasonable observer would conclude that the Commission’s adoption of the initiated ordinance also adopted and conferred upon the monument the religious views of the ordinance’s proponents.

Seriously? In the first lawsuit, the city argued and the court accepted the argument that the city property was a public forum, which legally means other groups can also place monuments there, and that therefore no reasonable person would view the display of that message as being endorsed by the government. But then the city adopted a policy that made it quite explicitly not a public forum, refusing to allow any contrary message to be displayed. By what possible reasoning does this not reverse the basis for the earlier decision? Granting exclusive access to Christian messages can’t be anything but an endorsement of that message.

You can read the full ruling here.

17 comments

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  1. 1
    harold

    Of course, if secular law were replaced with the Ten Commandments, it would have the silver lining that all Republican politicians would be in prison.

  2. 2
    The Lorax

    Rational argument always wins in the end. If it’s religious, remove it. If it isn’t religious, neither are the ones I’m going to put next to it *twists moustache, cackles maniacally*.

  3. 3
    baal

    Cases like this one put the lie to the ‘ceremonial deism’ or honoring the past type arguments. Whenever pushed, the city or the public group that ran the petition drive don’t respond with arguments from history, with practical considerations, or with disclaimers that it’s really not particularly religious. They respond with religious arguments and use power (though with usually a non-religious veneer, here a local ordinance that 40 year presence makes an object non-removable) to keep the religious object present (or to exclude the atheist’s monuments).

    It’s not very honest of them.

  4. 4
    eric

    From the ruling:

    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.

    This reminds me very much of the 2006 Cobb County case (about anti-evolution stickers on textbooks). The judge found that Cobb County officials had a legitimate secular purpose in putting the stickers in place. However, this was not enough to make them constitutional.

    Lemon has three prongs, not just one. A plaintiff does not have to prove that the state violated the first prong specifically, which is what the magistrate judge kind of insisted that they do.

  5. 5
    D. C. Sessions

    I’m somewhat surprised that the Freethinkers didn’t sue on grounds of expression, since the city had already argued and prevailed that the property was a public forum. (Thus, the city could not dispute the argument that it was such a forum since it was their own argument that the Court had upheld.)

  6. 6
    erichoug

    I actually like the “Public Forum” argument. If it starts to prevail more often, I am going to start giving money to localities for erection of monuments commemorating Fluffer Nutter; The giant lime-green rabbit on whose teachings the entirety of Western thought is based.

  7. 7
    eric

    D.C. – the city changed the status of the area after the suit; it was no longer a public forum. Thus, the Freethinkers couldn’t sue on grounds of freedom of expression because at the time of the second suit, nobody could erect a (new) monument in the area.

    It really comes down to the second prong of Lemon in this case. I thought this part of the ruling gets right to the point and has pretty much all you need to know about the case:

    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. Put together, Freethinkers argues, these facts result in an Establishment Clause violation.

    The combination of actions done in response to the first suit has created an obvious state-sponsored favoritism for a single religious display.

  8. 8
    Ichthyic

    Rational argument always wins in the end.

    oh, if only that were true.

    :(

  9. 9
    Ichthyic

    It’s not very honest of them.

    you’re much too lenient.

    it’s spectacularly dishonest would be more correct.

  10. 10
    jameshanley

    no reasonable observer would conclude that the Commission’s adoption of the initiated ordinance also adopted and conferred upon the monument the religious views of the ordinance’s proponents.

    I always knew I was unreasonable.

  11. 11
    llewelly

    I actually like the “Public Forum” argument. If it starts to prevail more often, I am going to start giving money to localities for erection of monuments commemorating Fluffer Nutter; The giant lime-green rabbit on whose teachings the entirety of Western thought is based.

    A quick google reveals that pictures of Fluffer Nutter are not work safe.

  12. 12
    Midnight Rambler

    Cases like this one put the lie to the ‘ceremonial deism’ or honoring the past type arguments.

    Regardless of what you think of “ceremonial deism”, or the motivation behind it, the Ten Commandments is a long way past it.

  13. 13
    Michael Heath

    Ed reports:

    [The Red River Freethinkers] decided to try a different tactic. If this is really a public forum, they should have the same access to it that other groups did and they submitted their own monument that read:

    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

    Since when has it been acceptable in groups committed to reason to scream (all caps)?

  14. 14
    eric

    Michael,
    Put on your stone monument-to-email translation cap; many stone monuments use all caps, because what looks good on a stone monument is not necessarily what looks good in an email. They aren’t shouting, they’re using fairly standard formatting for the media in question.

  15. 15
    erichoug

    @lewelly

    A quick google reveals that pictures of Fluffer Nutter are not work safe.

    HA! I just made that name up off the top of my head. That makes it even more awesome! Fluffer Nutter it is.

  16. 16
    The Lorax

    Eh? Fluffer Nutter is the name of a peanut butter and fluff sammich, and they are delicious.

    Incidentally, if we’re going to be worshipping a NSFW bunny-god named Fluffer Nutter… count me the fuck in. I want a piece of that.

  17. 17
    freethnkr

    @ #1 Harold:

    Of course, if secular law were replaced with the Ten Commandments, it would have the silver lining that all Republican politicians would be in prison.

    That’s not entirely true. They would more likely be stoned to death.

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