Does Monument Command Closer Look at Establishment Clause?

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By Melissa Heelan Stanzione

It’s time for the U.S. Supreme Court to reexamine establishment clause cases according to the clause’s original interpretation, a Tenth Circuit judge said Feb. 6 ( Felix v. City of Bloomfield , 10th Cir., No. 14-2149, denial of en banc rehearing 2/6/17 (Kelly, J., dissenting)).

The clause’s words make clear that the U.S. Constitution’s framers wanted to limit the federal government but not the states from establishing religion, Judge Paul Joseph Kelly Jr. said.

The establishment clause prohibits the government from favoring one religion over another.

Kelly dissented from the Tenth Circuit’s decision not to rehear a case about a New Mexico town’s placement of a 3,400 pound Ten Commandments monument on the city hall lawn.

The court decided in Nov. 2016 that the monument violated the U.S. Constitution’s establishment clause because the town impermissibly endorsed the monument.

Historical measures show that the clause shouldn’t “be an impediment to certain, limited government displays of a religious nature,” Kelly said.

As long as there’s no actual First Amendment violation, “we should defer to local government decisions” about endorsing a religious display, he said.

Returning to such a “historically-congruent” understanding of the clause, however, should ultimately be decided by the Supreme Court, Kelly said.

Chief Judge Timothy M. Tymkovich joined the dissent.

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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