The injuries to Freethinkers’s members are no doubt actual and imminent. The City’s display of the Ten Commandments monument has continued now for fifty years, with no end in sight. Those members have encountered the monument, causing them “to feel isolated and unwelcome in the city.” … Furthermore, those injuries are personal to Freethinkers’s members…..
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…. The claimed injury—direct and unwelcome contact with the monument—is “fairly traceable” to the alleged Establishment Clause violation….
The City’s assertion—that there is “no basis in law” for removal of the monument—is wrong. If the City’s monument violates the Establishment Clause, then a court can order its removal….
By a 2-1 vote, the court remanded the case to the district court for further proceedings. Judge Shepherd, while agreeing that plaintiffs had standing, argued that the case should be dismissed on the merits:
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.
AP reports on the decision.