July 01, 2015 Urban Lawyer

Case Notes

Red River Freethinkers v. City of Fargo

764 F.3d 948 (8th Cir. 2014). An ordinance allowing a Ten Commandments monument to remain displayed on a civic plaza, but disallowing further monuments of any kind to be erected on the site in the future, does not violate the Establishment Clause of the First Amendment because (1) the display of the monument on public land is “passive” in that it merely represents the religious and historical significance of the community; (2) the city is “not adopt[ing] a religious point of view” or endorsing any specific meaning of the monument; and (3) an Establishment Clause dispute itself cannot render a monument impermissible. Appellants, Red River Freethinkers (“Organization”), appealed from a judgment entered in the United States District Court for the District of North Dakota that granted summary judgment to the city of Fargo (“City”). Following a petition of over 5,000 signatures, the city adopted an ordinance that kept the monument in place and prevented additional ones from being placed on the civic plaza, despite the Organization’s offer to replace the monument with another, secular monument. The Organization alleged that the ordinance violated the Establishment Clause because it exclusively endorsed Christian principles by allowing the monument to remain on public land and preventing others from being built at the site. The United States Court of Appeals for the Eighth Circuit ruled in favor of the City and employed the standard set forth in Van Orden v. Perry, 545 U.S. 677 (2005). In Van Orden, the United States Supreme Court found that a Ten Commandments monument sitting on the Texas Capitol grounds was permissible under the Establishment Clause because the monument, along with the others erected at the site, “represent[ed] the several strands in the State’s political and legal history” and had “a dual significance, partaking of both religion and government.” Id. at 691-92. Thus, the Court reasoned, because no active endorsement of religious principles occurred, the display was “passive” and constitutionally permissible. Id. at 690-91. The Eighth Circuit upheld the Van Orden standard in ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d. 772 (8th Cir. 2005). In ACLU, the court found that a Ten Commandments monument made “passive — and permissible — use of the text of the Ten Commandments to acknowledge the role of religion in our Nation’s heritage.” Id. at 776-77. Here, the Eighth Circuit found the City’s actions permissible under Van Orden and Plattsmouth and noted that while the City ultimately adopted the ordinance proposed by community members in support of keeping the monument in its original place, this action did not necessarily mean that the City endorsed any one, specific meaning of the monument. See Pleasant Grove City v. Summum, 555 U.S. 460 (2009). The dissent, however, would have limited Van Orden and Plattsmouth to their unique and distinguishable facts: the disputed monument in Van Orden was displayed among other, secular monuments, thus allowing for the representation of diverse ideals at the Texas Capitol grounds; in Plattsmouth, the monument at issue was erected a significant distance from the nearest government building, which weakened any argument that the city government itself was endorsing the monument or the messages that it may evoke. Here, the monument was the sole monument displayed on the civic plaza, while others were prevented from being built. As such, the dissent argued that the Van Orden standard was inapplicable and that the Organization raised issues of material fact, rendering summary judgment inappropriate.
(Tara Moreland)

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