May 25 (Reuters) - A federal appeals court on Friday revived
a lawsuit seeking to remove the Ten Commandments from public
property in Fargo, North Dakota.
The 8th U.S. Circuit Court of Appeals, based in St. Louis,
found that the Red River Freethinkers, a group of atheists and
agnostics, had a right to sue the city for allegedly violating
the First Amendment's division between church and state.
The Freethinkers first sued Fargo in 2002 to remove the
granite marker from a grassy mall on city property. The district
court dismissed the case, finding that the monument, donated by
a private group, had a secular purpose as part of an urban
Instead of appealing, the Freethinkers tried a different
strategy, asking the city for a sister monument stating that
America was not founded on the Christian religion. Faced with
that request and a citizen petition, the city commission passed
a new ordinance to keep the Ten Commandments monument and to
prevent any others from being erected on the civic plaza.
The Freethinkers sued again in 2008, this time accusing the
city of adopting the religious motives of the petition-drive
group and violating the First Amendment's Establishment Clause,
which prevents the government from supporting religion.
The district court dismissed the suit a second time, finding
that the city was not inflicting harm on the atheist group. In
addition, the court found that it was bound by the prior ruling
and could not order the monument's removal. But the 8th Circuit
disagreed on Friday.
"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,'" Judge Roger Wollman wrote
for a two-judge majority. If the monument violates the
Establishment Clause, then the court can order its removal, he
One judge, Bobby Shepherd, reached a different conclusion.
While he agreed that the Freethinkers had a right to sue, he
supported the lower court's decision to dismiss the case,
finding no evidence that the city commissioners had a religious
Bruce Schoenwald, a lawyer for the Freethinkers, said he
welcomed the opportunity to return to the district court for a
John Baker, who represented the city, did not immediately
respond to a request for comment.
The case is Red River Freethinkers v. City of Fargo, U.S.
Court of Appeals for the 8th Circuit, No. 10-3214.
For the Freethinkers: Bruce Schoenwald of Stefanson Law.
For Fargo: John Baker of Greene Espel.
(Reporting by Terry Baynes)
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