Magistrate Rejects Challenge To North Dakota Ten Commandments Monument

In Red River Freethinkers v. City of Fargo, (D ND, Aug. 16, 2010), a North Dakota federal magistrate judge recommended that a lawsuit seeking removal of a Ten Commandments monument from the civic plaza, land owned by the city of Fargo, be dismissed. In 2005, the court rejected an Establishment Clause challenge to the monument by the same plaintiffs. Then the Freethinkers proposed donating a companion monument with language rejecting the notion that the U.S. is a Christian nation, but agreed that their monument offer would be withdrawn if the city moved the Ten Commandments to private property. The City Commission agreed to this, but changed its mind when 5200 signatures were collected for an initiated ordinance to keep the monument on city land. Council adopted an ordinance to keep the Ten Commandments and this lawsuit followed.

According to the court, plaintiff contends that "the City acted with an 'overt religious purpose' in reversing its decision to move the Ten Commandments monument to private property and has 'transformed' the previously constitutional display of a mixed secular and religious expression to one with an unconstitutional, religious purpose by adopting the initiated ordinance." However the court disagreed, concluding:

Freethinkers’ amended complaint asserts that, by adopting the initiated ordinance, the City adopted the alleged religious motivations of the petition promoters. This conclusory assumption is not supported by any allegations of fact.

The court also concluded that even if it did invalidate the ordinance, that would not necessarily lead to removal of the Ten Commandments monument. The city would still be free to leave the monument in place. The Crookston (ND) Daily Times reports on the decision.

UPDATE: The court adopted the magistrate's recommendations at Red River Freethinkers v. City of Fargo, 2010 U.S. Dist. LEXIS 93819 (D ND, Sept. 8, 2010).