Utah city again challenged over Ten Commandments display

Thursday, March 18, 1999

A Utah city council’s refusal to remove a Ten Commandments monument from government property has prompted a second federal lawsuit.

The Freedom From Religion Foundation, a nonprofit group based in Madison, Wis., filed the first challenge seeking the removal of a Ten Commandments monolith from the Ogden city-county courthouse grounds. In 1966, Ogden officials allowed a private police organization to place the monument on the front lawn of the county and city municipal building.

The group argued in a federal lawsuit filed late last year that the placement of the religious codes on government property endorses religion in violation of the establishment clause of the First Amendment.

Last week, a Salt Lake City religious group, the Summum, brought another legal challenge against Ogden, arguing that if the Ten Commandments were permitted to stay then other groups’ religious messages should be allowed on the property. Adherents of Summum believe in an ancient Egyptian meditative process and beings from outer space.

In a letter sent earlier this month to Ogden’s mayor, the group requested that a monolith with its “Seven Aphorisms” be placed alongside the Ten Commandments monument. Attached to the letter was a sketch of the monument containing such statements as: “Nothing rests; everything moves; everything vibrates,” and “Gender is everything; everything has its Masculine and Feminine Principle; Gender manifests on all levels.”

On March 9, Norman L. Ashton, the Ogden city attorney, sent the group a letter saying he would not be able to give a “substantive response” until mid-April. The Summum filed its federal lawsuit two days later.

This is not the first time the Summum has challenged a government display of the Ten Commandments in Utah. In 1994, the group sued the Salt Lake City Commission for rejecting a plan to display the “Seven Aphorisms” alongside a large Ten Commandments monument on the county courthouse lawn. The legal challenge made its way before the 10th U.S. Circuit Court of Appeals. The 10th Circuit in Summum v. Salt Lake County concluded that when the government has allowed private speech on public property, it has created a limited public forum. The group’s challenge of the Ogden display relies on the 10th Circuit decision.

Judge Stephanie K. Seymour, writing for the 10th Circuit, concluded that when Salt Lake County permitted a private police organization to place the Ten Commandments on government property that it opened the area up to private expression.

“Allowing govertnment officials to make decisions as to who may speak on county property, without any criteria or guidelines to circumscribe their power, strongly suggests the potential for unconstitutional conduct, namely favoring one viewpoint over another,” Seymour wrote.

Brian Barnard, a Salt Lake City attorney who is representing both the Freedom From Religion Foundation and the Summum in their legal challenges against Ogden, told freedomforum.org that if the Ten Commandments monument were removed, then the Summum would drop its crusade to have its religious beliefs displayed in front of the Ogden building.

If, however, Barnard says, the federal court presiding over the Freedom From Religion suit decides the commandments are not pervasively sectarian but instead primarily secular expression that can remain on government property, the Summum would press ahead with its challenge. The 10th Circuit in its 1973 ruling in Anderson v. Salt Lake City Corp., concluded that the Judeo-Christian codes were primarily secular in nature, not religious. The 10th Circuit, however, has acknowledge that its 1973 ruling may be in question, especially since the U.S. Supreme Court in its 1980 ruling in Stone v. Graham said the “Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths.”

The Summum’s complaint before the district court accuses the Ogden City Council of endorsing a specific religion by permitting the display of the Ten Commandments, but denying a display of its religious values.

“The refusal of the defendants to allow the religious monument of Summum on the front lawn of the City & County Building while allowing the display of the Eagles Ten Commandments monolith violates the Establishment provision of the First Amendment,” Barnard wrote in the complaint before the federal district court.

Barnard said he believed Ogden city officials should not have allowed the display of the Ten Commandments in the first place.

“My personal opinion is that the city should not have been involved and this situation is a prime example of why government should not get involved in the business of religion,” Barnard said. “The placement of the Ten Commandments in this case makes it look like Ogden officials were giving preferences to religion and that puts them in a troubling situation.”

A hearing in the Freedom From Religion suit against Ogden was set for April 12, Barnard said. Ogden officials have asked the district court to dismiss the Freedom From Religion’s suit. Ogden attorneys argued in its motion to dismiss that the commandments represent historical aspects of the community.

“Plaintiffs rigid, absolutists view of the Establishment Clause is hostile to religion and is contrary to the framers’ intent, the Country’s tradition and culture, the monument’s historical, cultural and secular significance, and the longstanding constitutional interpretation,” Ogden attorneys argued in their motion before the district court.