8th circuit: Freethinkers have standing to challenge 10 Commandments monument

Howard Friedman, Religion Clause

In Red River Freethinkers v. City of Fargo, (8th Cir., May 25, 2012), the U.S. 8th Circuit Court of Appeals held that a organization dedicated to promoting atheist and agnostic views has standing on behalf of its members to challenge a Ten Commandments monument that has stood for 50 years outdoors on city property in Fargo, North Dakota. City Council had originally decided to move the monument, but reversed its decision after an initiative petition to keep the monument on city property garnered over 5,200 signatures. In reaching its conclusion on standing, the court said:

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.