Guest Post by Brian Connolly, Otten Johnson, PC

Earlier this month, the Tenth Circuit Court of Appeals ruled that Bloomfield, New Mexico’s installation of a Ten Commandments monument on the lawn in front of city hall violated the Establishment Clause of the First Amendment.

In 2007, upon request of one of its members, the Bloomfield city council approved the placement of the privately-donated monument.  At the time, the city lacked a policy regarding placement of permanent monuments, but it enacted one three months later.  The city’s policy required a statement to be placed on privately-donated stating that the speech was not that of the city but rather of the donor, and also required that such monuments relate to the city’s history and heritage.  After several years of fundraising and another city council approval, the 3,400 pound Ten Commandments monument was placed on the city hall lawn in 2011, and the city held a ceremony—replete with statements by elected officials and religious leaders—to dedicate the monument.  Over the course of the next two years, the city amended the monument policy, and allowed the installation of other monuments on the lawn, including monuments containing the Declaration of Independence, the Gettysburg Address, and the Bill of Rights, but did not advertise its policy of allowing donated monuments.

The federal district court held that the plaintiffs had standing to challenge the city’s action in placing the monument, found that the monument constituted government speech, and held the placement of the monument to be a violation of the Establishment Clause.  The Tenth Circuit affirmed the district court’s decision.

With respect to the city’s challenge to the plaintiffs’ standing, the appeals court reiterated that “direct contact” with the Ten Commandments monument was all that was required for the plaintiffs to establish injury.  The court went on to find, over the city’s arguments to the contrary, that the Ten Commandments monument constituted government speech and was therefore subject to Establishment Clause limitations.  While the city disputed the monument’s permanence—arguing that, despite its size, it could be removed by a construction crew—the court instead found that the monument was permanent and therefore constituted government speech under the Supreme Court’s decision in Pleasant Grove City v. Summum.

Moving to the three-part Establishment Clause analysis established by Lemon v. Kurtzman, the court concluded that the monument violated the First Amendment because the monument had the effect of endorsing particular religious beliefs.  According to the court, the Ten Commandments are a religious text, the monument was prominently placed in front of the principal government building in the city, and the circumstances of the monument’s placement suggested a religious motivation on the city’s part.  In so holding, the court found that the required disclaimer message on the monument did not change the analysis that a reasonable observer would believe the monument to be the city’s speech and endorsement of religion, and further that the placement of secular monuments on the city hall lawn did not negate the religious endorsement effected by the Ten Commandments monument.

Despite the Tenth Circuit’s ruling, last week, several members of the Bloomfield community spoke out in favor of the Ten Commandments monument at a city council meeting.  The city is considering filing a petition for writ of certiorari in the Supreme Court.

Felix v. City of Bloomfield, ___ F.3d ___, 2016 WL 6634870 (10th Cir. Nov. 9, 2016).

Original Photography by George Bannister, Licensed