Federal judge refuses to throw out challenge to Utah Ten Commandments

By The Associated Press

04.14.99

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SALT LAKE CITY — A federal judge has denied motions for dismissal or summary judgment in a suit over the Ten Commandments monument at the Ogden City-Weber County Municipal Building grounds.

An Ogden taxpayer and the Wisconsin-based Freedom From Religion Foundation sued the city over the stone monolith last year, arguing its placement on public property violates the Constitution. They demanded its removal.

Another suit was filed by the Summum, an alternative religion founded in Salt Lake City. The Summum seeks to be allowed to place a monument explaining its principles alongside the Ten Commandments monument.

U.S. District Judge Bruce Jenkins consolidated the two suits on April 12, and said he would hear the Summum's request for a preliminary injunction on June 29. The Summum wants a court order allowing its proposed monument to stand on the municipal grounds while the litigation is pending.

Lawyers asked Jenkins on April 12 to either dismiss the litigation or rule in favor of the plaintiffs. Jenkins declined to do either, asking for more facts about the monument.

It was erected on the grounds in the 1960s after it was donated to the city by the Fraternal Order of the Eagles.

The lawsuits over the Ogden monument are aimed at clarifying the law, still unclear after repeated litigation over a similar monument that formerly stood before a Salt Lake City courthouse.

The 10th U.S. Circuit Court of Appeals upheld the placement of the Salt Lake City monument in 1973. It rejected arguments that the monument was a violation of the Constitution's establishment clause, which bans government from favoring one religion, or non-religion, over others. The monument was "primarily secular," the appellate court said.

The Summum filed a new lawsuit over the monument in 1994, citing changes in case law. In a ruling in the Summum's case, the Denver appellate judges questioned — but did not overrule — the 1973 decision.

The appellate court sent the case back to a federal trial judge for further hearings, but it was settled earlier this month when Salt Lake County agreed to pay the Summum $56,000. The monument has been removed.

The Denver appellate judges have "strongly suggested" the 1973 decision is no longer valid, argues attorney Brian Barnard, who represents the plaintiffs in both Ogden lawsuits.

Defense attorney Richard Van Wagoner, representing the city, contends the 1973 decision is correct and that Ogden's case for keeping the monument is stronger than Salt Lake's was.

In Ogden, the Ten Commandments monument stands with other markers commemorating area trappers and settlers, officers slain in the line of duty and Ogden's sister city.

Any religious overtones of the Ten Commandments are "neutralized" by the historical monuments, Van Wagoner argues.

Barnard says that the Ten Commandments have no link to Ogden's history. Moses did not receive the commandments on top of Ben Lomond Peak, he said.