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Published May 25 2012

Appeals ruling revives Freethinkers’ lawsuit

FARGO – The federal debate over the constitutionality of Fargo’s Ten Commandments monument isn’t over yet.

An opinion issued Friday from the 8th U.S. Circuit Court of Appeals reverses a Fargo federal judge’s decision to dismiss a lawsuit over the monument.

The appeals ruling sent the case back to Fargo’s U.S. District Court, where the Red River Freethinkers’ case against the city will now play out.

The Freethinkers sued Fargo over the Ten Commandments monument, claiming it violated First Amendment rights protecting against government establishment of religion.

The monument has sat in the public plaza outside the Fargo Civic Center for more than 50 years.

In dismissing the suit two years ago, Judge Ralph Erickson said the Freethinkers’ lawsuit raised identical issues that had been shot down by the court in 2008.

He also said the suit

didn’t address new injuries that could be resolved.

In the group’s original lawsuit against the city, the Freethinkers claimed the city gave the monument a religious purpose in voting in 2007 to keep it on public property.

In its decision Friday, the three-judge appeals panel rejected Erickson’s decision that the Freethinkers failed to present a claim that could be addressed by the court.

“The injuries to Freethinkers’ members are no doubt actual and imminent,” 8th Circuit Court Judge Roger Wollman wrote in the majority opinion. “Those members have encountered the monument, causing them ‘to feel isolated and unwelcome.’ ”

“There is no doubt, however, that the removal of the monument from public property would remedy the alleged injury,” Wollman wrote. “Freethinkers has standing to pursue its claim, and the District Court erred in dismissing the action for lack of standing.”

Circuit Court Judge Bobby Shepherd wrote a concurring opinion, in which he partly disagrees with the majority decision.

Shepherd said that while the Freethinkers have cause to bring the lawsuit, the circuit court should have upheld Erickson’s decision to dismiss the case and avoid a “new and needless round of litigation.”

Shepherd said “no reasonable observer” could conclude that the Fargo City Commission intended to give the monument a religious purpose with their vote to keep it on public property.

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Readers can reach Forum reporter Kristen Daum at (701) 241-5541