Submitted May 15, 2014.
Appeal from United States District Court for the District of North Dakota - Fargo.
For Red River Freethinkers, Plaintiff - Appellant: Bruce Alan Schoenwald, Stefanson & Plambeck, Moorhead, MN.
For City of Fargo, Defendant - Appellee: John M. Baker, Sybil Louise Dunlop, Katherine M, Swenson, Greene & Espel, Minneapolis, MN; Stacey Tjon Bossart, Haugen & Moeckel, Fargo, ND.
For Eagle Forum Education and Legal Defense Fund, Amicus on Behalf of Appellee(s): Lawrence John Joseph, Law Office of Lawrence J. Joseph, Washington, DC.
Before WOLLMAN, BYE, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
The Red River Freethinkers oppose a Ten Commandments monument in Fargo, North Dakota. The district court found the monument permissible under the Establishment Clause. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
The monument here is essentially the same as those in Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005), and ACLU Nebraska Foundation v. City of Plattsmouth, Nebraska, 419 F.3d 772 (8th Cir. 2005) (en banc). It was donated by the Fraternal Order of Eagles in 1958. It sits passively on the Civic Plaza. It shows the Ten Commandments alongside other symbols, such as the American flag and an " all-seeing eye" within a pyramid. See Twombly v. City of Fargo, 388 F.Supp.2d 983, 984-86, 992-93 (D.N.D. 2005) (reciting the history of this monument and finding it permissible under Van Orden and Plattsmouth ).
In response to the Freethinkers' offer of another monument, the City decided to relocate the Ten Commandments monument (which had sat undisturbed for over 40 years). See Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1017-18 (8th Cir. 2012) ( Freethinkers I ) (describing previous litigation). Many opposed the City's decision. A petition to keep the monument gathered more than 5,000 signatures. The petition gave the Board of City Commissioners the option to adopt, or submit to the voters, the following ordinance: " A marker or monument on City of Fargo property for 40 or more years may not be removed from its location on City of Fargo property." Many of the supporters invoked Christian principles. Others made statements such as " the monument has been at its current location for a long time," and " this is a democracy and the majority have spoken to have [the monument] remain."
After reviewing the petition, the City adopted the ordinance, leaving the monument in place. A month later, the City adopted a policy of not accepting additional monuments on the Civic Plaza. The Freethinkers sued, claiming that the petition and the City's reaction had made the monument impermissible under the Establishment Clause. The district court dismissed for lack of standing, but this court reversed and remanded for a decision on the merits. Freethinkers I, 679 F.3d at 1028. On remand, the district court granted summary judgment to the City. The Freethinkers appeal.
Summary judgment is appropriate when, construing the evidence favorably to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir. 1995). Summary judgment is subject to de novo review, drawing all reasonable inferences in favor of the nonmoving party. Wenzel v. Missouri-American Water Co., 404 F.3d 1038, 1039 (8th Cir. 2005).
A passive display of the Ten Commandments on public land is evaluated by the standard in Van Orden v. Perry, 545 U.S. at 690-91, which found Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), " not useful in dealing with [a] passive monument." Van Orden, 545 U.S. at 686. The monument there stood in the Texas Capitol grounds for 40 years, alongside secular symbols. The Supreme Court found that " Texas has treated its Capitol grounds monuments as representing the several strands in the State's political and legal history." Id. at 691. It noted that the Ten Commandments monument had " a dual significance, partaking of both religion and government." Id. at 692. The Supreme Court held the monument permissible under the Establishment Clause. Id. This court found Van Orden ...