10th Cir: Thou Shalt Not Violate Establishment Clause

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By Melissa Heelan Stanzione

Nov. 10 — A New Mexico town’s five-foot tall, 3,400-pound monument displaying the Ten Commandments on the city hall lawn violates the establishment clause of the First Amendment, the U.S. Court of Appeals for the Tenth Circuit held Nov. 9 ( Felix v. City of Bloomfield , 2016 BL 374159, 10th Cir., No. 14-2149, 11/9/16 ).

The city of Bloomfield impermissibly endorsed the monument and insufficiently mitigated the endorsement’s effect, Judge David M. Ebel wrote for the court.

The U.S. Constitution’s establishment clause prohibits the government from favoring one religion over another.

The monument is government speech under Pleasant Grove City v. Summum, 555 U.S. 460 (2009), because it’s a permanent monument, the court said.

As government speech, the monument is subject to the establishment clause’s limitations, including whether a government’s action “had an effect of endorsing religion,” it said.

Religious Service

Bloomfield impermissibly gave the impression to reasonable observers that it was endorsing religion because of the monument’s religious language and its placement on the lawn, the court said.

Furthermore, it was funded by two churches and “the dedication service was decidedly religious,” involving religious narration and a speech “riddled with Christian allusions,” it said.

The litigation was also initiated only seven months after the monument was erected, forcing “the conclusion that an objective observer viewed the display as a religious endorsement,” the court said.

On Hands and Knees

The court found that the city’s effort to mitigate the endorsement’s effect were ineffective.

The disclaimer on the monument was so “small and inconspicuous” that a reasonable observer “might have to get on his hand and knees” to be able to read it, the court said.

The text of the disclaimer that any message on the monument “‘does not necessarily reflect” the city’s opinions “is too equivocal to communicate a message of non-endorsement,” it said.

Judges Robert E. Bacharach and Carolyn B. McHugh joined the opinion.

Rodey Dickason Sloan Akin & Robb P.A. and the ACLU of New Mexico Foundation represented the plaintiffs.

Alliance Defending Freedom, Oster Law Firm and T. Ryan Lane P.C. represented the defendant.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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