During the early 1950s, after learning that a juvenile offender had never heard of the Ten Commandments, a state judge made it his mission to post copies of the Ten Commandments in courthouses across the country. Acclaimed director Cecile B. DeMille, after receiving news of the judge's crusade while shooting his 1956 blockbuster The Ten Commandments, teamed up with the judge to donate thousands of Ten Commandments monuments to cities and states across the country.
As the Supreme Court would later explain in Van Orden v. Perry, the donations---made through a civic organization known as the Fraternal Order of Eagles---“were motivated by a desire to ‘inspire the youth’ and curb juvenile delinquency by providing children with a ‘code of conduct or standards by which to govern their actions.’” 545 U.S. 677, 714 (2005). While state and local officials across the nation welcomed the donations by displaying the monuments in courthouses and public parks (not to mention the lawn of the state capital building in Texas's case), others have spent the last few decades trying to have them removed.
In one such case last week, the Eighth Circuit held that the Red River Freethinkers, “a non-profit corporation dedicated to the promotion of atheistic and agnostic views of the supernatural,” could proceed with its lawsuit against the City of Fargo over a monument of the Ten Commandments situated on public property. Red River Freethinkers v. City of Fargo, No. 10-3214 (8th Cir. May 25, 2012). The U.S. District Court for the District of North Dakota initially dismissed the Freethinkers' lawsuit requesting removal of the monument from the city’s “Civic Plaza.”
Rather than appealing the district court’s decision, the Freethinkers thought of another strategy: request that the city place their own monument next to the Ten Commandments monument, which they hoped would “downplay the Christian message of the Ten Commandments monument.” To maintain the status quo and avoid the appearance of playing favorites, the city ultimately adopted “a policy of not accepting additional monuments to be placed on the Civic Plaza." The Freethinkers seized the opportunity by again sueing the city, this time claiming that the city's new policy was intended to exclude their monument and therefore violated the Establishment Clause, which bars state and local governments from “respecting an establishment of religion.” The district court again dismissed their lawsuit, finding that the organization had not suffered an “injury in fact,” and thus lacked standing to sue.
Last week, in reversing the district court's decision, the Eighth Circuit called attention to the following circuit split over the test for determining “the injury required to confer standing in so-called ‘passive-display’ cases”:
1. The “Direct-and-Unwelcome Test”
By far the prevailing view requires only direct and unwelcome personal contact with the alleged establishment of religion. See, e.g., Adland, 307 F.3d at 478 (holding, in an Eagles Ten Commandments monument case, "an Establishment Clause plaintiff need not allege that he or she avoids, or will avoid, the area containing the challenged display."); Books, 235 F.3d at 301 ("We therefore conclude that a plaintiff may allege an injury in fact when he is forced to view a religious object that he wishes to avoid but is unable to avoid because of his right or duty to attend the government-owned place where the object is located."); Suhre v. Haywood County, 131 F.3d 1083, 1087–88 (4th Cir. 1997) (rejecting the view plaintiffs must alter their behavior to incur injury in fact, concluding "neither Supreme Court precedent nor Article III imposes such a change-in-behavior requirement. . . . Rules of standing that require plaintiffs to avoid public places would make religious minorities into outcasts."); Foremaster v. St. George, 882 F.2d 1485, 1490-91 (10th Cir. 1989) (holding plaintiff had standing by alleging direct personal contact with offensive municipal conduct even though he did not contend he changed his behavior); Saladin v. Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987) (holding city residents had standing to challenge the city's placement of the word "Christianity" on its official seal because they regularly received correspondence bearing the seal and the seal made them feel like second-class citizens); Am. Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, 698 F.2d 1098, 1107–08 (11th Cir. 1983) (holding one plaintiff had standing to challenge a large cross in a state park solely "because the cross [was] clearly visible from the porch of his summer cabin as well as from the roadway he must use . . . .").
2. The “Altered-Behavior Test”
The more demanding test requires a plaintiff to prove, at a minimum, he altered his behavior to avoid the allegedly unconstitutional display. Freedom from Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467-68 (7th Cir. 1988) (denying standing to challenge Ten Commandments display in a public park to residents who "conceded that they did not alter their behavior in any manner as a result of the Ten Commandments monument . . . .").7
7. It appears likely the Seventh Circuit has disowned the "altered behavior" test and distinguished this language contained in Zielke. See Doe v. Montgomery, 41 F.3d 1156, 1160-61 (7th Cir. 1994); Books, 235 F.3d at 299-300.