Freethinkers v. City of Fargo

Decision Date25 May 2012
Docket NumberNo. 10–3214.,10–3214.
Citation679 F.3d 1015
PartiesRED RIVER FREETHINKERS, Appellant, v. CITY OF FARGO, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit


Bruce Alan Schoenwald, argued, Moorhead, MN, for Appellant.

John M. Baker, argued, Robin M. Wolpert, on the brief, Minneapolis, MN, for Appellee.

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

Government displays of the Ten Commandments sometimes will violate the Establishment Clause of the First Amendment, see McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005), other times they will not, see Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005).

This appeal presents the question whether a city commission's adoption of an initiated ordinance that in effect countermanded the commission's earlier decision to remove from municipal property a Ten Commandments monument imbued the monument with an impermissible religious symbolism that had earlier been judicially declared not to exist. The district court dismissed the complaint, holding that Red River Freethinkers (Freethinkers) lacked standing to maintain its First Amendment Establishment Clause action. We reverse and remand for further proceedings.


On March 8, 1958, the Fraternal Order of Eagles—a non-religious civic organization—donated a Ten Commandments monument to the City of Fargo (City). See Twombly v. City of Fargo, 388 F.Supp.2d 983, 984 (D.N.D.2005).1 In 1961, the monument was installed in its current location, “a grassy, open area mall” on City property. Id. at 985. There it sat without legal challenge for forty years.

Then, in 2002, a group of City residents, all of them members of Freethinkers—a non-profit corporation dedicated to the promotion of atheistic and agnostic views of the supernatural—sued the City in the United States District Court for the District of North Dakota. See id. at 986. They sought (1) a declaration that the City's display of the Ten Commandments monument violated the Establishment Clause and (2) an order that the monument be removed from the mall.

Both sides stipulated to the relevant facts and moved for summary judgment. The district court noted that the City's monument was “virtually identical” to the “passive monuments” at issue in Van Orden, 545 U.S. 677, 125 S.Ct. 2854, and ACLU Nebraska Foundation v. City of Plattsmouth, Nebraska, 419 F.3d 772 (8th Cir.2005) (en banc), both of which survived Establishment Clause scrutiny. It further observed that neither the plurality in Van Orden, nor our court in City of Plattsmouth, found the “sometimes ... governingtest” articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), “useful in dealing with the[se] sort[s] of passive monuments.” Van Orden, 545 U.S. at 685–86, 125 S.Ct. 2854;see City of Plattsmouth, 419 F.3d at 778 n. 8. It therefore conducted “a contextual inquiry,” examining the “circumstances surrounding” the monument's placement on City property and “the ‘physical setting’ of the monument.” Twombly, 388 F.Supp.2d at 988–89 (quoting Van Orden, 545 U.S. at 701, 125 S.Ct. 2854 (Breyer, J., concurring)).

The district court acknowledged that the City's monument “is neither far removed from governmental buildings, nor is it surrounded by a collection of secular monuments.” Id. at 990–91;cf. Van Orden, 545 U.S. at 681, 125 S.Ct. 2854; City of Plattsmouth, 419 F.3d at 777 n. 7. But it nevertheless concluded that “a reasonable observer could not perceive the city as adopting or endorsing the religious message of the display” given (1) that the monument “originated from a private organization and was erected for a secular purpose, to celebrate the first urban renewal project in North Dakota history,” Twombly, 388 F.Supp.2d at 993, (2) that the monument contained an inscription describing “not only the [private] origin of the monument's creation, but also a message from the Eagles describing the [secular] purpose of the display,” id. at 991, (3) “that the public would perceive the mall as a public forum,” where the expression of religious opinions would be “less likely to be seen as the exclusive dominion of the state,” id. at 992, and (4) the “extreme dearth of community complaints and the complete absence of legal challenges over the monument[']s near fifty year history,” id. at 993. It therefore denied the plaintiffs' motion for summary judgment, granted the City's motion, and dismissed the action.

The plaintiffs did not appeal from the decision, but instead adopted a new strategy. Pointing out that the district court in Twombly had theorized 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,” id. at 992, Freethinkers offered their own monument to the City, with a request that it be placed near the Ten Commandments monument. The proposed monument was to be inscribed:


From the Treaty of Tripoli, Approved Unanimously by the United States Senate, June 7, 1797. Signed by President John AdamsS

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

See Compl. ¶¶ 12–13.

Freethinkers hoped that its sister monument would “downplay the Christian message of the 10 Commandments monument.” Appellant's Summ. of the Case.

The City Commission referred Freethinkers's proposal to City Attorney Erik Johnson for consideration and a recommendation. Johnson noted that the Twombly litigation “complicate[d] the current offer,” and therefore proposed that Freethinkers meet with him “to talk about [its] goals and wishes,” so that the request could be “handled properly.” Appellant's App. at 38. At that meeting Freethinkers indicated that it “prefer[red] that [its] offer to donate the monument be accepted,” but that if the City “decide[d] to remove the Ten Commandments to a private location,” then the sister monument would “not be needed.” Id. at 51.

At the next Commission meeting, Johnson presented the Commission with four options: (1) “Decline [ ] Freethinkers'[s] offer and leave the Ten Commandments monument where it is”; (2) “Decline [ ] Freethinkers'[s] offer and move the Ten Commandments monument”; (3) “Accept [ ] Freethinkers'[s] offer and allow [its] monument to be installed”; or (4) “Establish a Committee to Create ‘Diversity’ or ‘freedom’ displays.” Id. Johnson advised that “from a purely legal standpoint, the option with the least risk and greatest potential for cost-avoidance would be” option two. Id.

The Commission also heard the views of a number of citizens. One explained why he thought the City could decline Freethinkers's offer and retain the Ten Commandments monument without offending the Establishment Clause. See id. at 51–52. Another “urged the Commissioners not to give into [sic] the Freethinkers' agenda to rewrite American history.” Id. at 52. Two others offered religious justifications for keeping the Ten Commandments monument: One “hope[d] the Commission [would have] the strength and courage to support the Lord,” while the other stated that “the Ten Commandments is pretty sacred and there are very few people who would not agree with that,” adding that the “issue should be put to a vote of the people.” Id. One spoke in favor of Freethinkers's offer. Commissioner Linda Coates then observed that she ha[d] heard a very mixed message from the people who have spoken. She said there are many Fargoans of other faiths and it is not the role of government to proclaim one religion above the others.” Id.

The Commission then voted unanimously to reject Freethinkers's offer and, by a vote of 3–to–2, further decided to donate the Ten Commandments monument to a private entity. It planned “to receive proposals for relocation of the monument for a period of 14 days” and to “make its determination of which proposal to accept at its July 16, 2007 meeting.” Id.

Public reaction to the City's decision to donate the Ten Commandments monument was mixed. Of those in favor of the decision to move the monument, some cited principles, see, e.g., id. at 66 ([T]he City Commission's decision to move the monument should be upheld because of separation of church and state and to protect the first amendment.”) ([T]he monument is not critical to one's faith.”), while others offered practicality, see, e.g., id. ([I]t is irresponsible to hold taxpayers at risk of possible litigation.”) ([T]he City should focus on more pressing social needs.”).

There were a great many people, however, who wanted the monument to stay. Several of them organized and circulated a petition to change the City's municipal code to provide that

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.

Id. at 71.2 The petition, which garnered 5,265 signatures in short order, also asked the City not to remove any such monuments “until this initiated ordinance is adopted by the Board of Commissioners of the City of Fargo or until there is a vote of the people on this initiated ordinance.” Id.

On July 2, 2007, at the next Commission meeting, the Commission deemed the petition received and placed it on “first reading.” 3 It then heard the views of several citizens who were in favor of the proposed ordinance. Like those who wanted the monument removed, their reasons were varied. See, e.g., id. at 66 ([T]he City Commission has received petitions in the past ... and the Commission disregarded the people's wishes.... [T]he point of a petition is about freedom, not about a monument.”) ([T]his is a democracy and the majority have spoken...

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