               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 13-1934
                      ___________________________

                            Red River Freethinkers

                     lllllllllllllllllllll Plaintiff - Appellant

                                         v.

                                  City of Fargo

                    lllllllllllllllllllll Defendant - Appellee

                           ------------------------------

              Eagle Forum Education and Legal Defense Fund

               lllllllllllllllllllllAmicus on Behalf of Appellee(s)
                                     ____________

                  Appeal from United States District Court
                  for the District of North Dakota - Fargo
                               ____________

                           Submitted: May 15, 2014
                            Filed: August 25, 2014
                                ____________

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 court1 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 (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

      1
        The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.

                                         -2-
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 (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 controlling in Plattsmouth: “The Supreme
Court’s decision in Van Orden governs our resolution of this case. Like the Ten
Commandments monument at issue in Van Orden, the Plattsmouth monument makes
passive—and permissible—use of the text of the Ten Commandments to
acknowledge the role of religion in our Nation’s heritage.” Plattsmouth, 419 F.3d
at 776-77.



                                         -3-
       Van Orden and Plattsmouth control here unless this monument is different.
The monument has not been physically altered. See Staley v. Harris Cnty., Tex., 461
F.3d 504, 514 (5th Cir. 2006), reh’g en banc, 485 F.3d 305 (5th Cir. 2007) (addition
of a neon light around a Bible changed the meaning of a monument). It sat
undisturbed for many years. See Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d
784, 806 (10th Cir. 2009) (noting that “years of tranquility ‘suggest more strongly
than can any set of formulaic tests that few individuals, whatever their system of
beliefs, are likely to have understood the monument as amounting, in any
significantly detrimental way, to a government effort to favor a particular religious
sect, primarily to promote religion over nonreligion.’”), quoting Van Orden, 545 U.S.
at 702 (Breyer, J., concurring). The Freethinkers claim that the Christian overtones
to the petition movement changed public perception of the monument. See Pleasant
Grove City, Utah v. Summum, 555 U.S. 460, 477 (2009) (“The message conveyed
by a monument may change over time. A study of war memorials found that people
reinterpret the meaning of these memorials as historical interpretations and the society
around them changes.”) (quotations omitted); McCreary Cnty., Ky. v. American Civil
Liberties Union of Ky., 545 U.S. 844, 862 (2005) (allowing examination of
legislative history in an Establishment Clause challenge); American Atheists, Inc. v.
Davenport, 637 F.3d 1095, 1118 (10th Cir. 2010) (attributing motivation of private
actors to government officials).

     Summum examined the effect of communal action on a public monument. The
Supreme Court said that

      it frequently is not possible to identify a single “message” that is
      conveyed by an object or structure, and consequently, the thoughts or
      sentiments expressed by a government entity that accepts and displays
      such an object may be quite different from those of either its creator or
      its donor. . . . Indeed, when a privately donated memorial is funded by
      many small donations, the donors themselves may differ in their
      interpretation of the monument’s significance. By accepting such a


                                          -4-
      monument, a government entity does not necessarily endorse the
      specific meaning that any particular donor sees in the monument.

Summum, 555 U.S. at 476-77 (footnotes omitted). The petition here parallels the
fund drive in Summum. The petitioners combined “many small donations” of
political will to sway the City. They expressed both religious and secular reasons to
retain the monument. The Board of City Commissioners did not adopt a religious
point of view, instead citing legal challenges, the City’s interest in ending anguished
debate, and the importance of embracing and tolerating “all people.” By adopting the
petition, the City did not “necessarily endorse the specific meaning that any particular
[petitioner] sees in the monument.” Id.

       The monument here is permissible under Van Orden and Plattsmouth. The
Freethinkers’ lawsuit, and the various motives of the petitioners who responded, did
not change its meaning under Summum. A contrary holding—that an Establishment
Clause dispute itself can render a monument impermissible under the Establishment
Clause—would “encourage disputes concerning the removal of longstanding
depictions of the Ten Commandments . . . [and] thereby create the very kind of
religiously based divisiveness that the Establishment Clause seeks to avoid.” Van
Orden, 545 U.S. at 704 (Breyer, J., concurring). The district court correctly granted
summary judgment that the monument does not violate the Establishment Clause.2

                                     *******

      The judgment is affirmed.




      2
        The Freethinkers argue that on remand, the district court failed to follow the
direction of this court to more thoroughly examine the motivations behind the City’s
decision. The district court sufficiently addressed the issues this court identified.
                                          -5-
BYE, Circuit Judge, dissenting.

      I respectfully dissent.

       Relying on Van Orden v. Perry, 545 U.S. 677 (2005), and ACLU Nebraska
Found. v. City of Plattsmouth, 419 F.3d 772 (8th Cir. 2005), both of which concerned
Ten Commandments monuments with some shared history and similar physical
characteristics, 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.

        A brief recitation of additional facts not set forth by the majority is useful. In
1958, the Fraternal Order of Eagles (Eagles) donated the monument to the City of
Fargo (City). Twombly v. City of Fargo, 388 F. Supp. 2d 983, 984 (D.N.D. 2005).
A presenter at the dedication ceremony was Judge E.J. Ruegemer, a Minnesota
Juvenile Court Judge and then Chairman of the Eagles National Youth Commission.
Id. at 985. In the 1940s, disheartened by a juvenile offender who was ignorant of the
Ten Commandments, Judge Ruegemer approached the Eagles with a plan to place
paper copies of the Ten Commandments in juvenile courts across the country. Books
v. City of Elkhart, Ind., 235 F.3d 292, 294 (7th Cir. 2000). Some changes were made
to his original plan, most notably changing the medium from paper to granite
monuments. Id. The Eagles ultimately supported the program and, during the 1950s,
donated monuments to numerous communities across the country. Id. Many of these
monuments have been subject to Establishment Clause challenges. See, e.g., Van
Orden, 545 U.S. at 681; Plattsmouth, 419 F.3d at 773-74.

                                           -6-
       From this point, the monument at issue here presents its unique history. At the
dedication ceremony, the City's then-mayor announced the monument would "occupy
a place of honor . . . to be a constant reminder to one and all that Fargo shall go
forward only as it respects and lives according to the principles of the Ten
Commandments." Twombly, 388 F. Supp. 2d at 985 (citation and quotation marks
omitted). The City placed the monument in its Civic Plaza, which, over the years has
been used for "political assembly, public advocacy, memorial services, and religious
worship." Id. at 992. The Civic Plaza is a grassy open-area mall bounded to the
north, south, and east by the Civic Auditorium, Public Library, and City Hall. Id. at
984. From entrances to these public edifices and a city street, five paved pathways
intersect at the centrally prominent monument. Id. No other monuments share the
mall. Id.

       In recent years, the monument has been subject to legal challenges. Initially,
several members of the Freethinkers sought declaratory judgment the monument
violated the Establishment Clause. Id. After Twombly ruled the monument
permissible, the Freethinkers offered to donate a companion monument to place in the
mall. Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1018 (8th Cir. 2012)
(Freethinkers I).3 The City Commission rejected the offer. Id. at 1019. The City
Commission, however, voted to relocate the Ten Commandments monument to
private property. Id. Following this decision, a group of citizens proposed an
ordinance permanently preserving the monument in its location (Ordinance).4 Id.

      3
       The Freethinkers' proposed monument was to memorialize the text of the 1797
Treaty of Tripoli, in which President John Adams asserted the United States was not
founded on the Christian religion.
      4
        The City operates under a home-rule charter, which allows citizens to "provide
for the adoption . . . of ordinances." N.D. Cent. Code Ann. § 40-05.1-06. Citizens
may initiate an ordinance by first collecting signatures of at least 15% of total votes
in the most recent mayoral election, and then submitting the initiated ordinance to the
City Commission. Fargo Home Rule Charter ch. 4. The City Commission may either
adopt or refuse the initiated ordinance. Id. Such a refusal brings the ordinance to a
city-wide vote. Id.
                                         -7-
Facially, the Ordinance preserved the location of any monument which had been in
place on City property for more than 40 years. Id. The Ten Commandments
monument, however, is the City's only such monument. Id. at 1019 n.2. While
reasons for wanting to keep the monument in its place varied, "[m]any [Ordinance]
supporters invoked Christian principles." Ante at 2.

       More than 5,000 signatures5 were collected, enough for the Ordinance to be
brought before the City Commission by the next meeting. Freethinkers I, 679 F.3d
at 1020. In response, the City Commission voted to reconsider and then reverse its
decision to relocate the monument, and scheduled consideration of the Ordinance for
its next meeting. Id. This waived a procedural requirement which would have
delayed considering the Ordinance. Id. At the next meeting, the City Commission
adopted the ordinance instead of putting it to a city-wide vote. See Fargo Mun. Code
§ 18-0514. This decision prompted the Freethinkers to renew their offer of a
companion monument; the City Commission tabled the renewed offer. Freethinkers I,
679 F.3d at 1020. A month later, the City Commission adopted "a policy of not
accepting additional monuments to be placed on the Civic Plaza[,]" and rejected the
Freethinkers' offer. Id. (citation and quotation marks omitted).

       The Freethinkers then brought this suit, alleging the monument, because of the
City's actions surrounding the Ordinance, violated the Establishment Clause. Id. at
1015. The district court initially dismissed the action and, on appeal, we remanded
to determine "[w]hether the City's actions post-Twombly [had] transformed the Ten

      5
        The majority analogized the signature drive to a private fund drive in Pleasant
Grove City, Utah v. Summum, 555 U.S. 460, 476-77 (2009). There, the Supreme
Court reasoned "when a privately donated memorial is funded by many small
donations, the donors themselves may differ in their interpretation of the monument's
significance. By accepting such a monument, a government entity does not
necessarily endorse the specific meaning that any particular donor sees in the
monument." Id. I do not believe this analogy is apt – the Ordinance was not a gift,
but rather a small group of citizens partaking in the legislative function.
                                         -8-
Commandments monument from a permissible display to an impermissible violation
of the Establishment Clause." Id. at 1026. On remand, the district court granted
summary judgment to the City.

       In affirming the grant, the majority relies on the test set forth in Van Orden, and
adopted by this circuit in Plattsmouth. In Van Orden, the Supreme Court considered
a Ten Commandments monument on the grounds of the Texas State Capitol. 545
U.S. at 681. The Van Orden monument shared grounds with "17 monuments and 21
historical markers commemorating the people, ideals, and events that compose Texan
identity." Id. (citation and internal quotation marks omitted). The plurality in Van
Orden held the monument was passive. Id. at 686. For this reason, the Court
reasoned the Lemon test was not useful. Id. The Court concluded that, even though
the Ten Commandments undoubtedly carry religious content, the monument's display
was permissible, because in its surroundings it represented both religious and
historical significance. Id. at 691. Van Orden, then, asks us to consider the context
surrounding a monument to determine whether it is passive. See, e.g., Green v.
Haskell Cnty. Bd. of Comm'rs, 568 F.3d 784, 805 (10th Cir. 2009) (applying the
Lemon test after finding "the Haskell County courthouse context [does not bear] a
close resemblance to the monument setting in Van Orden.").

       The City's Ten Commandments monument stands in substantially dissimilar
environs from the monuments in Van Orden and Plattsmouth. Unlike the
surroundings found in Van Orden, no other monuments share the Civic Plaza.
Indeed, pursuant to the policy the City Commission created after adopting the
Ordinance, no others may. No statues honor civic leaders nor do any placards praise
historical progress. In Plattsmouth, the monument sat in a 45-acre park, near picnic
tables and playgrounds, ten blocks from the nearest government building. 419 F.3d
at 774. The City's monument sits alone in the Civic Plaza, a downtown open area
approximately an acre in size, flanked on three sides by public buildings. See
Twombly, 388 F. Supp. 2d at 985 (describing the distances between the monument


                                           -9-
and surrounding city buildings). From the entrances of those buildings, sidewalks
guide a visitor to observe the centrally prominent Ten Commandments monument,
where they intersect. Id. Because the physical context highlights the religious text,
and because the City Commission's decisions grant the Ten Commandments
monument a sole, permanent, and prominent location in the Civic Plaza, I conclude
the actions of the City have rendered the monument "active" and Van Orden is not
helpful. Accordingly, I would apply the Lemon test.

       Under Lemon, we find government action "touch[ing] upon religion is
permissible . . . if it has a secular purpose, does not have the primary or principal
effect of advancing religion, and does not foster an excessive entanglement with
religion." ACLU v. City of Florissant, 186 F.3d 1095, 1097 (8th Cir. 1999) (citations
and quotation marks omitted) (describing the "purpose" and "entanglement" prongs
of the Lemon test). When considering purpose, we view government action as "an
objective observer, one who takes account of . . . the text, legislative history, and
implementation of the statute, or comparable official act." McCreary Cnty., Ky. v.
ACLU of Ky., 545 U.S. 844, 862 (2005) (citations and quotation marks omitted).
Failing either the purpose or entanglement prong renders a government's action a
violation of the Establishment Clause. See id. at 883.

      In granting summary judgment, the district court concluded the Freethinkers
had not introduced sufficient evidence the City Commission endorsed the motives of
some of the Ordinance's organizers. I disagree.

      First, as evidence of the City Commission's neutrality with regard to the
monument, the City points to Commissioners' statements expressing respect for the
majority will of the people. See Appellee's Br. at 7. We are not bound to take such
statements at face value, as the Establishment Clause prohibits even "covert"
discrimination between religious and non-religious beliefs. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (quoting


                                        -10-
Bowen v. Roy, 476 U.S. 693, 703 (1986)). Indeed, we have reason to look past those
statements to the actions of the Commission. Once the Ordinance obtained the
required signatures, the City Commission had the option to either put it on the ballot
for a city-wide vote or adopt the Ordinance as its own, foregoing a public vote. Fargo
Home Rule Charter ch. 4. By adopting the Ordinance as its own, then, the City
Commission prevented the general public from expressing its will.6 An objective
observer could find this decision discredits the City's espoused purpose of respecting
the will of the majority.

       Second, the City Commission acted with relative haste when dealing with the
proposals regarding the Ten Commandments monument as compared to those relating
to the Freethinkers' offered monument. Once presented with the Ordinance, the City
Commission (1) reconsidered and reversed its decision to relocate the Ten
Commandments monument, (2) waived a procedural requirement which would have
delayed such consideration, and (3) adopted the Ordinance as its own without a city-
wide vote. This took place in less than a month. By contrast, the City Commission's
treatment of the Freethinkers' proposals was characterized by delay. After the
Freethinkers initially offered a companion monument, the City Commission delayed
voting on the proposal until it had explored its options. Freethinkers I, 679 F.3d at
1018-19. The City Commission then chose an option which rejected the Freethinkers'
monument while allowing the Ten Commandments monument to continue being
displayed, albeit on private property. Id. When the Freethinkers renewed their offer,
the City Commission again tabled it to again consider options, namely whether any
monuments could share the City Plaza. Id. at 1020. A month later, the City
Commission adopted its policy ensuring the Ten Commandments would be the sole
monument on the City Plaza, and finally rejected the Freethinkers' offer. Id. An
objective observer, viewing the relative haste with which the City Commission
handled proposals regarding the Ten Commandments monument, could infer the City

      6
       The 5,000 plus signatures do not necessarily represent a majority of the City's
electors, as the City has more than 100,000 citizens.
                                        -11-
favored the religious message of the Ten Commandments over the secular message
of the Freethinkers' monument.

       Third, an objective observer could infer the Commission intended for the City
government to endorse the religious text on the Ten Commandments monument. As
the City Commission initially decided to relocate the Ten Commandments monument
to private property rather than remove it, the monument would have remained on
display had the City proceeded with its plan to relocate it. Accordingly, the actions
of the City Commission served only to ensure the religious message of the monument
continued to be displayed on government rather than private property. The policy
adopted by the City Commission then had the further effect of conferring on the Ten
Commandments monument a special status as the only permanent message allowed
in the Civic Plaza.

       It is a well-accepted proposition that one ordinarily intends the natural and
probable consequences of one's actions. See, e.g., United States v. Diggs, 527 F.2d
509, 513-514 (8th Cir. 1975). Accordingly, an objective observer could infer the City
Commission intended to maintain the display of the religious message of the Ten
Commandments monument on government grounds and confer on the religious
message of the monument special status as the only permanent message in an area
used for public assemblies. With this, an objective observer could conclude the
monument entangled the City with the religious purposes of Judge Ruegemer and the
religiously-motivated Ordinance supporters. Summary judgment is inappropriate
here.

      For these reasons, I conclude the Freethinkers have introduced sufficient
evidence to raise questions of fact for a trial, and I respectfully dissent. I would
reverse the grant of summary judgment and remand for further proceedings.
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