In Felix v. City of Bloomfield (D. NM Aug. 7, 2014), the U.S. District Court for the District of New Mexico found that the display of a five-foot, granite Ten Commandments monument outside City Hall violated the Establishment Clause “because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.”  In April 2007, Kevin Mauzy, a member of the City of Bloomfield City Council, proposed that the City allow the erection of the Ten Commandments monument on the lawn in front of City Hall.  The City Council approved the request, and in July 2007 adopted a resolution establishing a forum policy for the placement of historical monuments on the City’s lawn.  In 2011, after Mauzy left the City Council, he constructed a five-foot tall granite monument of the Ten Commandments on the lawn. 

The monument was dedicated at a ceremony outside City Hall that was followed by prayer, and in which Mauzy stated the following:

Some would believe that this monument is a new thing.  They have been so busy trying to remove God from every aspect of our lives that they have overlooked our history.  Well, I’ve got news for you, it’s been here all along. . . . You and I are average citizens who believe just like most of our fellow Americans. We want the government to leave us alone and to keep our – their hands off our money, our religion, our Ten Commandments our guns, our private property, and our lives . . . God and his Ten Commandments continue to protect us from our evil. . . . May God bless us and protect this monument.

The Ten Commandments monument contains disclaimers that state “any message hereon is of the donors and not the City of Bloomfield” and that the information on the monument does not “necessarily reflect the opinions of the City.”

Monuments of the Declaration of Independence, the Gettysburg Address, and the Bill of Rights were also constructed on the same lawn outside of City Hall after the Ten Commandments monument was built.  The Ten Commandments monument commands a position of prominence, in front of the other three monuments.

Plaintiffs sued, alleging that the Ten Commandments monument violates the Establishment Clause of the First Amendment to the U.S. Constitution.  The District Court determined that plaintiffs had Article III standing, since they “have regular, direct and unwelcome contact with the Ten Commandments monument and therefore have suffered an ‘injury-in-fact,’ which was caused by Defendant’s conduct . . . .”  Specifically, Plaintiff Felix “sees the Ten Commandments monument five to six times a week while driving past City Hall.”  Plaintiff Coone “passes in sight of the Ten Commandments monument three to four times a week and observes it once a month in close proximity when he visits City Hall to pay the water bill for his family residence.”

The District Court next considered whether the Ten Commandments monument was government speech subject to a potential violation of the Establishment Clause.  It found that the monument was a form of government speech because (a) the monument is permanent within the practical and legal sense, since it has been authorized by the City for 10 years and can be renewed, and (b) the disclaimers on the monument do not overshadow the City’s decision to allow the monument on public property.  The District Court rejected the City’s contention that the City’s forum policy shows that public property is open to all private parties to express different historical viewpoints, and the Court must defer to this intent.  The District Court noted that “the City has not advertised its forum policy or taken any steps to encourage members of the community, other than Mr. Mauzy, to put monuments on the City Hall lawn.  The disclaimer sign that currently stands on the City Hall lawn announcing the existence of the forum policy was placed there by Mr. Mauzy in 2011, the same day he erected the Ten Commandments monument. . . .  Furthermore, prior to the placement of the Ten Commandments monument, there was no public declaration informing the community about the forum policy (aside from the resolution itself).  Thus, for almost four years, there was no obvious sign that Defendant had opened the City Hall Lawn as a public forum.”  Further, the City has discretion over the layout and appearance on the City Hall Lawn, along with the nature of the discourse on the lawn.  Accordingly, the City has not “transformed the City Hall Lawn into an open public forum; it has merely provided ‘selective access’ to the lawn.”

The District Court found that “[i]n view of the circumstances surrounding the context, history, and purpose of the Ten Commandments monument, it is clear that the City of Bloomfield has violated the Establishment Clause because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.”  It noted, however, that this is “a very close case,” the result of which could differ with a slight change of the facts.  “For example, had the Ten Commandments monument been established last in the series of monuments, after placement of the Declaration of Independence, Gettysburg Address, and Bill of Rights monuments, the First Amendment may not have been offended.  Had the Ten Commandments monument been arranged at the rear of the north lawn near the municipal building complex, with the other three monuments (consisting of six tablets) in front of it, the Ten Commandments monument may have passed muster.  Had the Ten Commandments monument been installed without a dedication event or with a ceremony absent religious overtones, the ultimate conclusion may have differed. Had the City of Bloomfield adopted the amended policy permitting monuments first, with language clearly allowing only temporary residence of a monument, the result might have changed.”

All this was foreshadowed in the opening paragraph of Judge Parker’s decision, in which he expressed his views on the ambiguity in the present state of the law:

In this case, the Court is tasked with deciding whether a monument, inscribed with a version of the Ten Commandments and standing on the lawn in front of the City of Bloomfield, New Mexico municipal building complex, violates Amendment I of the Constitution of the United States of America. This is a difficult endeavor. As United States Supreme Court Justice Clarence Thomas observed, the Supreme Court’s Establishment Clause “jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess. . . .” Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12, 13 (2011) (Thomas, J., dissenting from the denial of cert.) Amen! This is, indeed, one of the “difficult borderline cases” referenced by United States Supreme Court Justice Stephen G. Breyer in his concurring (and controlling) opinion in Van Orden v. Perry, 545 U.S. 677, 700 (2005) (Breyer, J., concurring in the judgment). A tweak of the facts (or of the reviewing jurist’s nose) could result in a different conclusion. Nonetheless, the Court will do its best, based on the facts it has found and honoring the precedent of higher courts it is bound to follow, to reach the correct result.

[Emphasis in original]

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.