Red River Freethinkers v. City of Fargo

764 F.3d 948, 2014 U.S. App. LEXIS 16277, 2014 WL 4178341
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 25, 2014
Docket13-1934
StatusPublished
Cited by3 cases

This text of 764 F.3d 948 (Red River Freethinkers v. City of Fargo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Red River Freethinkers v. City of Fargo, 764 F.3d 948, 2014 U.S. App. LEXIS 16277, 2014 WL 4178341 (8th Cir. 2014).

Opinions

BENTON, Circuit Judge.

The Red River Freethinkers oppose a Ten Commandments monument in Fargo, North Dakota. The district court1 found the monument permissible under the Establishment Clause. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

[949]*949The monument here is essentially the same as those in Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005), and ACLU Nebraska Foundation v. City of Plattsmouth, Nebraska, 419 F.3d 772 (8th Cir.2005) (en banc). It was donated by the Fraternal Order of Eagles in 1958. It sits passively on the Civic Plaza. It shows the Ten Commandments alongside other symbols, such as the American flag and an “allseeing eye” within a pyramid. See Twombly v. City of Fargo, 388 F.Supp.2d 983, 984-86, 992-93 (D.N.D. 2005) (reciting the history of this -monument and finding it permissible under Van Orden and Plattsmouth).

In response to the Freethinkers’ offer of another monument, the City decided to relocate the Ten Commandments monument (which had sat undisturbed for over 40 years). See Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1017-18 (8th Cir.2012) (Freethinkers I) (describing previous litigation). Many opposed the City’s decision. A petition to keep the monument gathered more than 5,000 signatures. The petition gave the Board of City Commissioners the option to adopt, or submit to the voters, the following ordinance: “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.” Many of the supporters invoked Christian principles. Others made statements such as “the monument has been at its current location for a long time,” and “this is a democracy and the majority have spoken to have [the monument] remain.”

After reviewing the petition, the City adopted the ordinance, leaving the monument in place. A month later, the City adopted a policy of not accepting additional monuments on the Civic Plaza. The Freethinkers sued, claiming that the petition and the City’s reaction had made the monument impermissible under the Establishment Clause. The district court dismissed for lack of standing, but this court reversed and remanded for a decision on the merits. Freethinkers I, 679 F.3d at 1028. On remand, the district court granted summary judgment to the City. The Freethinkers appeal.

Summary judgment is appropriate when, construing the evidence favorably to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law! Fed.R.Civ.P. 56; Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir.1995). Summary judgment is subject to de novo review, drawing all. reasonable inferences in favor of the nonmoving party. Wenzel v. Missouri-American Water Co., 404 F.3d 1038, 1039 (8th Cir.2005).

A passive display of the Ten Commandments on public land is evaluated by the standard in Van Orden v. Perry, 545 U.S. at 690-91,125 S.Ct. 2854, which found Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), “not useful in dealing with [a] passive monument.” Van Orden, 545 U.S. at 686, 125 S.Ct. 2854. The monument there stood in the Texas Capitol grounds for 40 years, alongside secular symbols. The Supreme Court found that “Texas has treated its Capitol grounds monuments as representing the several strands in the State’s political and legal history.” Id. at 691, 125 S.Ct. 2854. It noted that the Ten Commandments monument had “a dual significance, partaking of both religion and government.” Id. at 692, 125 S.Ct. 2854. The Supreme Court held the monument permissible under the Establishment Clause. Id. This court found Van Orden controlling in Plattsmouth: “The Supreme Court’s decision in Van Orden governs.our resolution of this case. Like the Ten Commandments monument at issue in Van Orden, [950]*950the Plattsmouth monument makes passive — and permissible — use of the text of the Ten Commandments to acknowledge the role of religion in our Nation’s heritage.” Plattsmouth, 419 F.3d at 776-77.

Van Orden and Plattsmouth control here unless this monument is different. The monument has not been physically altered. See Staley v. Harris Cnty., Tex., 461 F.3d 504, 514 (5th Cir.2006), reh’g en banc, 485 F.3d 305 (5th Cir.2007) (addition of a neon light around a Bible changed the meaning of a monument). It sat undisturbed for many years. See Green v. Haskell Cnty. Bd. of Com’rs, 568 F.3d 784, 806 (10th Cir.2009) (noting that “years of tranquility ‘suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to - favor a particular religious sect, primarily to promote religion over nonreligion.’ ”), quoting Van Orden, 545 U.S. at 702, 125 S.Ct. 2854 (Breyer,. J., concurring). The Freethinkers claim that the Christian overtones to the petition movement changed public perception of the monument. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 477, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (“The message conveyed by a monument may change over time. A study of war memorials found that people reinterpret the meaning of these memorials as historical interpretations and the society around them changes.”) (quotations omitted); McCreary Cnty., Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 862, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (allowing examination of legislative history in an Establishment Clause challenge); American Atheists, Inc. v. Davenport, 637 F.3d 1095, 1118 (10th Cir.2010) (attributing motivation of private actors to government officials).

Summum examined the effect of communal action on a public monument. The Supreme Court said that

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764 F.3d 948, 2014 U.S. App. LEXIS 16277, 2014 WL 4178341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/red-river-freethinkers-v-city-of-fargo-ca8-2014.