Where a city adopted an ordinance to keep in place a Ten Commandments monument opposed by a freethinkers’ group, the passive monument was permissible under relevant case law, and the district court correctly granted summary judgment holding that the monument did not violate the Establishment Clause.
Dissenting opinion by Bye, J.: “The majority reasons the Establishment Clause test applied in those cases governs here ‘unless this monument is different.’ Ante at 4. I agree with this proposition. Because I conclude particulars of this monument’s history and physical surrounding make it different, however, I would apply the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). I further conclude the Red River Freethinkers (Freethinkers) have introduced sufficient evidence to raise questions of material fact for the matter to proceed to trial. Accordingly, I would reverse the grant of summary judgment.”
Judgment is affirmed.
Red River Freethinkers v. City of Fargo (MLW No. 66856/Case No. 13-1934 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Benton, J.) Appealed from U.S. District Court, District of North Dakota, Erickson, J. (Bruce Alan Schoenwald, Moorhead, Minnesota, argued for appellant) (John M Baker, Minneapolis, argued for appellee; Sybil L. Dunlap, Katherine M. Swenson and Stacey Tjon Bossart appeared on the brief).
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