764 F.3d 948
8th Cir.2014Background
- The Fraternal Order of Eagles donated a Ten Commandments granite monument to Fargo in 1958; it sat prominently and alone in the Civic Plaza for decades.
- The Red River Freethinkers challenged the monument under the Establishment Clause; district court initially upheld it (Twombly), then later attempts to relocate it triggered new litigation.
- Freethinkers offered to donate a companion monument (Treaty of Tripoli text); the City rejected the offer and initially voted to relocate the Ten Commandments monument to private property.
- Citizens collected >5,000 signatures for an initiated ordinance preserving any monument on City property for 40+ years; the City Commission adopted the ordinance (keeping the Ten Commandments in place) and then adopted a policy barring additional monuments on the Plaza.
- On remand from this court (which previously found standing), the district court granted summary judgment for the City; the Eighth Circuit majority affirmed, concluding the display remained permissible under Van Orden and Plattsmouth.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ten Commandments monument as displayed violates the Establishment Clause | Freethinkers: City actions (ordinance, adopting petition, policy) transformed the monument into an unconstitutional government endorsement of religion | City: Monument is a passive historical display like Van Orden/Plattsmouth; petition/signatures are private-political acts and do not alter the monument's meaning | Affirmed: display is permissible under Van Orden/Plattsmouth; petition and City reaction did not change its constitutionally passive character |
| Whether post-donation civic actions (petition/ordinance) change legal analysis from Van Orden to Lemon | Freethinkers: the petitioners’ Christian-motivated statements and the City’s swift favorable actions show religious purpose, so Lemon should apply | City: Summum analogy — multiple private motives don’t make government endorse any single meaning; no evidence City adopted a religious purpose | Held: Summum governs; motives of petitioners do not convert the monument into an impermissible religious endorsement |
| Whether the City’s procedural choices (adopting ordinance vs. ballot) reflect religious endorsement | Freethinkers: adopting ordinance, waiving delays, and making the monument uniquely permanent show intent to endorse religion | City: Actions reflect neutral considerations (end controversy, legal risk) and deference to community sentiment | Held: Court found City’s explanations sufficient; no genuine issue of material fact on intent for summary judgment purposes |
| Whether summary judgment was appropriate (sufficiency of factual dispute) | Freethinkers: evidence raises material factual disputes about purpose and effect requiring trial | City: Evidence insufficient; Van Orden controls as a matter of law | Held: Majority — summary judgment appropriate for City; dissent would have denied summary judgment and applied Lemon |
Key Cases Cited
- Van Orden v. Perry, 545 U.S. 677 (2005) (plurality: passive Ten Commandments monument on capitol grounds permissible; Lemon not useful for passive historical displays)
- ACLU Nebraska Found. v. City of Plattsmouth, 419 F.3d 772 (8th Cir. 2005) (applying Van Orden to uphold a Ten Commandments monument as a permissible passive acknowledgment of religion in heritage)
- Lemon v. Kurtzman, 403 U.S. 602 (1971) (Establishment Clause test: secular purpose, primary effect, excessive entanglement)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (accepting privately donated memorials can convey multiple meanings; government acceptance does not necessarily endorse donor-specific views)
- McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) (courts may examine purpose and history to determine whether government action endorses religion)