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
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.