Bob Ritter
 Bob Ritter, JM Center
 Founder & President

Jefferson Madison Center for Religions Liberty

Educating Americans about religious liberty as expressed
by founding fathers Thomas Jefferson and James Madison

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Chapter 11 - Post-Van Orden Litigation
[Working Draft, Nov. 18, 2009]

    Since Van Orden v. Perry [1] and McCreary County v. ACLU of Kentucky [2] were decided on June 27, 2005, the lower courts all held against all six plaintiffs seeking to remove the Eagles tombstones from public lands. At present, bogus secular reasons are winning the day, and the First Amendment has been bloodied.

    It is the hope of the Jefferson Madison Center that there will be an opportunity in the near future to present evidence of Judge Ruegemer’s and the Eagle’s religious intent with respect to the Ten Commandments Program (Chapter 4), and that the Supreme Court will reject phony secular purposes and restore the principle of separation of church and state as the proper meaning of the Establishment Clause.

    Post-Van Orden litigation involves the following cities:

  • Pleasant Grove City, Utah
  • Plattsmouth, Nebraska
  • Fargo, North Dakota
  • Everett, Washington
  • Princeton (Gibson County), Indiana
  • Boise, Idaho

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 Footnotes:

  1. 545 U.S. 677 (2005).
  2. 545 U.S. 844 (2005).

Pleasant Grove, Utah

    The Ten Commandments monument in Pleasant Grove, Utah was the subject of legal challenges brought both before and after the Supreme Court’s decision in Van Orden. The first challenge was brought in 2003 by the Society of Separation-ists,[1] and the second challenge, which will be discussed in depth later, was brought by the religious organization Summum in 2005. Pleasant Grove accepted the Ten Commandments monument from the Eagles in 1971 and placed it in Pioneer Park. This 2.5 acre public park contained eleven other monuments and memorials that were privately donated.

    In 2004, the district court held in favor of Pleasant Grove City, finding that the Tenth Circuit’s 1973 Anderson decision upholding Salt Lake City’s display of an Eagles’ Ten Commandments monument was controlling.[2] The plaintiffs’ appealed to the Tenth Circuit, which waited for the Supreme Court to decide Van Orden before issuing its ruling.[3] Ultimately, the Tenth Circuit held that there was not enough information in the record for it or the district court to make the type of fact-specific determination required by Van Orden and remanded the case to the district court.[4]

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 Footnotes:

  1. Society of Separationists v. Pleasant Grove City, 416 F.3d 1239 (10th Cir. 2005).
  2. Society of Separationists v. Pleasant Grove City, No. 2:03-CV-839J (D. Utah 2004).
  3. 416 F.3d at 1240.
  4. Ibid. at 1241.

Plattsmouth, Nebraska

    The City of Plattsmouth, Nebraska accepted a Ten Command-ments monument from the Eagles in 1965 and placed it in Memorial Park.[1] The text of the Ten Commandments faced towards the road, but was set far enough back to be unreadable by passing motorists.[2] This public park, which was located ten blocks from Plattsmouth City Hall, contained no other monuments or memo-rials.[3] The City performed any required maintenance of the monument, but had no records describing how the monument was accepted or installed.[4]

    In 2001, an unnamed resident of Plattsmouth and the American Civil Liberties Union of Nebraska Foundation sued the City to compel the monument’s removal.[5] The district court held that the City’s display of the Ten Commandments violated the Establishment Clause.[6] In 2004, this decision was affirmed by a panel of the Eighth Circuit Court of Appeals,.[7] and the City of Plattsmouth requested a rehearing en banc.[8] After the Eight Circuit granted the City’s request and heard oral arguments for the case, but before issuing its decision, the Supreme Court handed down its decision in Van Orden.[9]

    The Court of Appeals held that the Ten Commandments monument in Memorial Park did not violate the Establishment Clause because it was not “different in any constitutionally significant way” from the display in Van Orden.[10] The court found that the monument was a “passive acknowledgment of the roles of God and religion” in American history.[11] And like the monument in Van Orden, the “decades passed” without any objection to Plattsmouth’s display of the Ten Commandments monument.[12]

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 Footnotes:

  1. ACLU of Nebraska Found. v. City of Plattsmouth, 419 F.3d 772, 773 (8th Cir. 2005).
  2. Ibid. at 774.
  3. Ibid.
  4. Ibid.
  5. Ibid.
  6. Ibid.
  7. ACLU of Nebraska Found. v. City of Plattsmouth, 2004 WL 298965 (8th Cir. 2004).
  8. 419 F.3d at 774.
  9. Ibid. at 775.
  10. Ibid. at 778.
  11. Ibid.
  12. Ibid.

Fargo, North Dakota

    The City of Fargo, North Dakota accepted a Ten Commandments monument from the Eagles in 1958.[1] The monument was placed on public land approximately thirty yards away from the City Hall building.[2] In 1958, Fargo had recently completed an urban renewal project that constructed City Hall, other surrounding buildings, and the grassy mall on which the Ten Commandments monument was placed.[3] Engraved on the lower part of the monument (in all capital letters) was the text, “Presented to the City of Fargo commemorating the first urban renewal project in North Dakota. Dedicated to the State’s future development and a better way of life for all its people. Fargo Aerie no. 153 Fraternal Order of Eagles.”[4]

    The monument was presented to the City by Judge Ruegemer and accepted by the mayor of Fargo in a ceremony in which four religious officials participated.[5] The mayor stated that the monument “shall this day forward occupy a place of honor … and ultimately shall be placed on the premises of the new City Hall … 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.”[6] The monument was the only permanent marker on the mall area, and the City assumed responsibility for its maintenance.[7]

    Five residents of Fargo sued the City to have the Ten Commandments monument removed.[8] One of these plaintiffs had been Mayor of Fargo for sixteen years,[9] and all five plaintiffs belonged to an organization called Red River Freethinkers “composed of members whose view of the supernatural is atheistic and agnostic.”[10] Another plaintiff had complained to the Mayor about the monument forty years before this lawsuit and was told by the Mayor that it “was not a ’big deal.’”[11] In 2001, four of the plaintiffs began urging the City to remove the monument.[12]

    The district court, which was the only court to rule on this case, held that the presence of the Ten Commandment monument on the mall area next to City Hall did not violate the Establishment Clause.[13] The court refused to apply the Lemon test in the wake of the Supreme Court’s decision in Van Orden and the Eighth Circuit’s decision in Plattsmouth.[14] While the court recognized that Fargo’s monument was not surrounded by other markers like the monument in Van Orden, and that thirty yards away from Fargo’s City Hall is much closer than the ten blocks away from Plattsmouth’s City Hall, the court declared that these were only non-dispositive “factors” in its analysis.[15] What set Fargo’s monument apart from other Eagles’ monuments – and what made a “contextual substitute for a secular message” unnecessary – was that the inscription dedicating the monument to Fargo’s urban renewal project provided “a clear secular message […] from the Eagles describing the purpose of the display.”[16]

    The court found two additional factors significant. First, because parks are traditional public forums a reasonable observer would be less likely to view the monument as government speech instead of private speech.[17] The Eagle’s dedication on the monument would make clear that “the display originated from a private organization.”[18] Second, the Fargo monument “ha[d] never previously been the subject of legal challenge [and] non-legal complaints [were] similarly rare.”[19] Finally, the court found that the Mayor’s comments at the dedication ceremony – that the monument was a “reminder” to all that Fargo must “respect[] and live[] according to the principles of the Ten Commandments” – simply “demonstrate an awareness of the obvious religious aspects of the Ten Commandments display.”[20] But examining the Mayor’s statements in “full context … evidences a clear secular purpose,” i.e., celebration of the urban renewal project.[21] Thus, the court upheld Fargo’s display of the Ten Commandments monument.

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 Footnotes:

  1. Twombly v. City of Fargo, 388 F. Supp. 2D 983, 984 (D.N.D. 2005).
  2. Ibid. at 985.
  3. Ibid. at 984.
  4. Ibid.
  5. Ibid. at 985.
  6. Ibid. (ellipses in original).
  7. Ibid.
  8. Ibid. at 986.
  9. Ibid. at 992.
  10. Ibid. at 986.
  11. Ibid.
  12. Ibid.
  13. Ibid. at 983.
  14. Ibid. at 986.
  15. Ibid. at 990-91.
  16. Ibid. at 991.
  17. Ibid. at 991-92.
  18. Ibid. at 992.
  19. Ibid. at 993.
  20. Ibid.
  21. Ibid.

Everett, Washington

    Everett, Washington accepted a Ten Commandments monument from the Eagles in 1959 and placed it on public property adjacent to the City Hall.[1] By the time of litigation, the City Hall building only contained the local police department.[2] In 1988, the monument was moved about ten feet – making it about forty feet from the entrance to the Old City Hall building – to make room for a war memorial.[3] The 1959 ceremony in which the Mayor of Everett accepted the monument was attended by local church leaders, but there was no fanfare when it was relocated in 1988.[4] In its new location, the monument was in a much less conspicuous place, and there were several other monuments in the area.[5]

In 1990, the City received a letter from a resident claiming that the monument’s display violated the Establishment Clause, but the City refused to move it[6]. During the 1990s, the City received a total of seven letters – five letters written by two different residents and two letters written by Americans United for Separation of Church and State.[7] In 2003, twenty-year-old Everett resident Jesse Card, represented by Americans United and others, sued the City to compel the monument’s removal.[8]

    Both the district court and the Ninth Circuit Court of Appeals sided with the City of Everett and held that the display did not violate the Establishment Clause.[9] Refusing to apply the Lemon test, the Ninth Circuit found the Van Orden decision, specifically the opinion of Justice Breyer, to be controlling.[10] The court refused to find that “the presence of clergy at the dedication ceremony distinguished this situation from Van Orden” or to “infer a non-secular purpose” on the City’s part.[11] Although there were many more monuments and memorials near the Ten Commandments in Van Orden than near Everett’s monument, the court did not read Van Orden as establishing a quota system for monuments.”[12] Finally, the monument sat on the Old Court House grounds for thirty years without any complaints.[13] Because these facts made the situation more similar than different to Van Orden, the court upheld the City’s display of the Ten Commandments monument.[14]

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 Footnotes:

  1. Card v. City of Everett, 520 F.3d 1009, 1010 (9th Cir. 2008).
  2. Ibid.
  3. Ibid. at 1012.
  4. Ibid.
  5. Ibid. at 1011.
  6. Ibid. at 1012.
  7. Ibid.
  8. Ibid.
  9. Ibid. at 1021; see also Card v. City of Everett, 386 F. Supp. 2d 1171 (W.D. Wash., 2005).
  10. 520 F.3d at 1016.
  11. Ibid. at 1020.
  12. Ibid.
  13. Ibid. at 1021.
  14. Ibid.

Princeton (Gibson County), Indiana

Gibson County, Indiana accepted a Ten Commandments monument from the Eagles in 1956 and installed the monument on the lawn of the county courthouse.[1] The courthouse grounds contained six other monuments and memorials by the time the Indiana Civil Liberties Union and two Gibson County residents sued to have the monument removed.[2] In January of 2005, the district court held that the presence of the monument violated the Establishment Clause and ordered its removal.[3]

While Gibson County was appealing the district court decision to the Seventh Circuit Court of Appeals, the Supreme Court decided the Van Orden case.[4] The Seventh Circuit then vacated the district court’s judgment and remanded for the district court to reconsider the case in light of Van Orden.[5] The district court offered little re-analysis beyond a determination that “the similarities between this case and Van Orden are too vivid to dismiss.”[6] The court then held that Gibson County’s display of the the Ten Commandments did not violate the Establishment Clause.[7]

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 Footnotes:

  1. Russelburg v. Gibson County, Indiana, 2005 WL 2175527 at 1 (S.D. Ind., 2005); see also “Indiana County Can Keep Ten Commandments Marker,” Associated Press, 9/11/05, available at http://www.firstamendmentcenter.org/news.aspx?id=15767, accessed on 11/13/09.
  2. Ibid. at 2.
  3. Ibid. at 1.
  4. Ibid.
  5. Ibid.
  6. Ibid at 2.
  7. Ibid.

Boise, Idaho

Generation Life v. City of Boise

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 Footnotes:

  1. _
  2. _