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Court: Monument OK on site; City of Fargo can have Ten Commandments on public property

Darren Gibbons / Forum News Service The Ten Commandments monument outside the Fargo Civic Center is getting attention after North Dakota Rep. Tim Kasper asked the state attorney general's office to determine if a University of North Dakota law group, which is funded by the state, can represent the Freethinkers in their suit against the city.

FARGO — An appeals court handed the city of Fargo a victory Monday in its lengthy legal battle with a secular rights group over a Ten Commandments monument that sits on public property.

In a 2-1 ruling, the 8th U.S. Circuit Court of Appeals upheld a district court’s judgment in favor of the city and against the Red River Freethinkers. The Freethinkers believe the monument, located in front of City Hall and the Civic Center downtown, violates the principle of separation of church and state and should be removed.

The U.S. District Court for North Dakota previously dismissed the Freethinkers’ case for lack of standing. The appeals court disagreed, and in response, the district court issued a judgment in favor of the city without a trial.

The Freethinkers appealed again, arguing that its case merited a trial, but on Monday that appeal failed.

Judge Kermit E. Bye of Fargo was the lone dissenting opinion on the appeals court.

Bye wrote that the Freethinkers deserved a trial in part because “the City Commission’s decisions grant the Ten Commandments monument a sole, permanent, and prominent location in the Civic Plaza.”

Charles Sawicki, president of the Freethinkers, said his group should be able to take it to trial “because the city basically acted in a way that supports one religion.”

The Freethinkers can now take the case to the Supreme Court if it chooses, but has not yet decided on the next step, Sawicki said.

The appeals court’s majority opinion argued that the monument was similar to other monuments that have been considered legal under the First Amendment’s Establishment Clause, which prohibits the government from making any law “respecting an establishment of religion.”

But Bye said the Fargo monument was different from the other monuments cited by the majority.

“The City’s Ten Commandments monument stands in substantially dissimilar environs,” Bye wrote. “… no other monuments share the Civic Plaza. Indeed, pursuant to the policy the City Commission created after adopting the Ordinance, no others may.”

The legal battle over a Ten Commandments monument donated to the city by the Fraternal Order of Eagles in 1958 is more than a decade old.

The Freethinkers’ suit was dismissed in 2002, then reconsidered in 2005 when a district court judge ruled that the monument was not strictly religious because it also celebrated secular ideals.

In March 2007, the Freethinkers asked the City Commission if it could place a secular monument next to the existing one. In response, the city floated the idea of moving the existing monument onto private property, angering some residents who collected signatures for a petition to ban the removal of the monument from public land.

The City Commission voted to approve the ban and banned any other monuments from being added to Civic Center plaza.

The Freethinkers sued again, arguing that the City Commission’s actions were prohibited by the Establishment Clause.

“It’s awfully hard to argue that the basis wasn’t religious,” Sawicki said.

He said his group’s lawyer told them that going to the Supreme Court is the only legal option left — and one that could be expensive for the city.

“If we do it, Fargo better up its budget into the millions,” Sawicki said.

Adrian Glass-Moore

Readers are encouraged to reach Adrian Glass-Moore at (701) 241-5599 or with comments, criticisms and tips. He joined The Forum as its night reporter in 2014.