JANE FELIX; B.N. COONE, Plaintiffs - Appellees,
CITY OF BLOOMFIELD, Defendant-Appellant. LIBERTY COUNSEL, Amicus Curiae.
from the United States District Court for the District of New
Mexico (D.C. No. 1:12-CV-00125-JAP-RHS)
Jonathan A. Scruggs, Alliance Defending Freedom, Scottsdale,
Arizona (David A. Cortman and Kevin H. Theriot, Alliance
Defending Freedom, Scottsdale, Arizona, Joel Oster, Oster Law
Firm, Shawnee, Kansas, and Ryan Lane, T. Ryan Lane, P.C.,
Aztec, New Mexico, with him on the briefs), for
G. Schultz, Rodey Dickason Sloan Akin & Robb, P.A.,
Albuquerque, New Mexico (Matthew M. Beck, Rodey Dickason
Sloan Akin & Robb, P.A., Albuquerque, New Mexico,
Alexandra Freedman Smith, ACLU of New Mexico Foundation,
Albuquerque, New Mexico with him on the briefs), for
D. Staver, Anita L. Staver, and Horatio G. Mihet, Liberty
Counsel, Orlando, Florida, and Mary E. McAlister, Liberty
Counsel, Lynchburg, Virginia, filed a brief for Amicus
BACHARACH, EBEL, and McHUGH, Circuit Judges.
Commandments are a symbol of both religious and secular
significance. McCreary Cty. v. ACLU of Ky., 545 U.S.
844, 869 (2005) ("[T]he original text viewed in its
entirety is an unmistakably religious statement dealing with
religious obligations and with morality subject to religious
sanction."); Van Orden v. Perry, 545 U.S. 677,
701 (2005) (Breyer, J., concurring in the judgment) (noting
the Ten Commandments can convey "a secular moral message
. . . about proper standards of social conduct" or a
message "about a historic relation between those
standards and the law"); id. at 690 (plurality
opinion) ("Moses was a lawgiver as well as a religious
leader."). Because of this duality, there are some
circumstances in which the government's display of the
Ten Commandments runs afoul of the Establishment Clause, and
other times when the display passes constitutional muster.
The outcome depends principally on the degree to which the
government's conduct, as perceived by an objective
observer, amounts to a religious endorsement either in
purpose or effect. Green v. Haskell Cty. Bd. of
Comm'rs, 568 F.3d 784, 796-97 (10th Cir. 2009)
(applying the "Lemon test, " as refined by
Justice O'Connor's concurrence in Lynch v.
Donnelly, 465 U.S. 668 (1984)).
case, Plaintiffs Jane Felix and B.N. Coone challenge the City
of Bloomfield's conduct allowing the installation of a
Ten Commandments monument on the City Hall Lawn. The lawsuit
raises two preliminary questions before we proceed to the
Establishment Clause analysis. We first consider standing and
conclude Plaintiffs have suffered a legally sufficient injury
to bring their claim in federal court. We next ask whether
the monument is government speech subject to the limitations
of the Establishment Clause, or instead is private speech in
a public forum which enjoys immunity from First Amendment
scrutiny. The Supreme Court tells us that permanent monuments
are government speech, even when donated by a private
actor-so we conclude the First Amendment applies here.
finally confront the religious endorsement effect of the
display. In light of the context and apparent motivation of
the Ten Commandments' placement on the lawn, we conclude
the City's conduct had the effect of endorsing religion
in violation of the Establishment Clause. Accordingly, having
jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
City of Bloomfield is a small community located in San Juan
County, in the northwest corner of New Mexico.
Bloomfield's Municipal Complex includes City Hall and
City Hall Lawn, the Fire Station, a utilities department
where residents pay water bills, and various other municipal
departments. Plaintiffs Jane Felix and B.N. Coone are
polytheistic Wiccans who reside in Bloomfield. That means
they do not adhere to Christianity's conception of one
deity, or subscribe to the principles and dictates advanced
by the Commandments.
April 2007 Bloomfield City Council Meeting, City Councilor
Kevin Mauzy proposed that the council allow him to install
privately-funded monuments on the City Hall Lawn, in front of
City Hall (an area of about thirty feet by forty-five feet).
Mauzy's initial presentation to the council offered ideas
ranging from the Declaration of Independence to the Code of
Hammurabi, but he sought the council's immediate approval
for only one: the Ten Commandments monument
("Monument"). At this point, Bloomfield did not
have a policy for what kinds of monuments may be installed on
the lawn. Despite objections from several people in
attendance, the City Council approved placement of the
Monument on the City Hall Lawn. Several people responded to
Bloomfield's approval of the Monument by presenting a
petition and writing letters to Bloomfield and local
newspapers opposing the Monument on city property. Mauzy then
contacted a local business to begin constructing the Monument
and reached out to two local churches for donations to fund
its construction. Two active city council members, Lynne
Raner and Lamar Morin (a pastor at one of the churches),
donated to the project through their respective churches.
2007, three months after the City Council initially approved
the Monument, the City Council approved Resolution #2007-12
("Forum Policy No. 1"), the first forum policy
governing the placement of "permanent" monuments on
the lawn. The forum policy imposed two requirements relevant
here: (1) a statement on all monuments "explaining that
the message communicated by the monument is that of the
donor, not the City of Bloomfield, " and (2) that all
monuments "relate to the history and heritage of the
City's law and government." (Aplt. App. 288). The
policy gave the City Council "absolute discretion"
to reject a proposed monument based on aesthetic, safety, or
practical concerns. (Id. at 289).
donations dwindled for the Monument, Mauzy left the City
Council in 2008 and abandoned efforts for the tablet's
construction. In 2010, however, Mauzy revived his endeavor
and began fundraising again, although this time not through
churches. In the Spring of 2011, Mauzy sought to present the
final plan to the City Council. He was added to the
"consent agenda" for items that are routine,
procedural, or had been formerly discussed. (Id. at
284). The City Council unanimously approved the Monument over
an objection from a citizen in attendance, and Mauzy erected
it on the lawn on July 1, 2011. It weighs over 3, 400 pounds
and is embedded approximately fourteen inches into the
Monument is at the front of the lawn, and its prominence
depends on where a person enters the City Hall parking lot.
(See App. Fig 2). It is also visible from U.S. Highway 550,
one of the main roads through town. At the bottom of the
tablet, a disclaimer set in small inconspicuous font reads:
"Any message hereon is of the donors and not the City of
Bloomfield." (Id. at 1088). The day he
installed the Monument, Mauzy also placed an additional
freestanding disclaimer sign on the City Hall Lawn, (see App.
Fig. 3), that reads:
The City has intentionally opened up the lawn around City
Hall as a public forum where local citizens can display
monuments that reflect the City's history of law and
government. Any message contained on a monument does not
necessarily reflect the opinions of the City, but are
statements from private citizens. If you would like to
display a monument in this forum, please contact the City
Clerk, who can give you a copy of the ordinance that explains
the procedures for displaying a monument.
(Id. at 287).
held a dedication ceremony for the Ten Commandments on the
City Hall Lawn on July 4, 2011. The occasion was replete with
both secular and religious observances. The Star Spangled
Banner was sung, the Pledge of Allegiance was recited, and
members of the local Veterans of Foreign Wars chapter
ceremoniously folded the American flag. But the event was
inaugurated with prayer from a church deacon, the
flag-folding was set to religious narration, and Mauzy
delivered remarks emphasizing and celebrating Christian
precepts. Among other comments laden with religious meaning,
Mauzy said, "Some would believe this monument is a new
thing. They have been so busy trying to remove God from every
aspect of our lives . . . . God and his Ten Commandments
continue to protect us from our evil." (Id. at
465). He also read the disclaimer on the bottom of the
Monument out loud.
the same month, on July 25, 2011, the City Council approved a
revised forum policy proposed by Mauzy, Resolution #2011-15
("Forum Policy No. 2"), which removed the word
"permanent" from the earlier version and required
donors to reapply every ten years to keep their monuments on
the lawn. About four months later, in October 2011, the
council approved Mauzy's proposed Declaration of
Independence monument, which he installed in November 2011.
He held another dedication ceremony for that monument, but
without any religious components.
Plaintiffs filed suit on February 8, 2012, the City Council
approved, and Mauzy later installed, monuments depicting the
Gettysburg Address (dedicated July 4, 2012) and the Bill of
Rights (dedicated July 4, 2014). Both had dedication
ceremonies devoid of religious overtures. As of the time of
filing, Mauzy was the only person to apply for or install
monuments on the City Hall Lawn. Bloomfield had not
advertised its forum policy nor sought monuments from any
ordinarily review a district court's factual findings for
clear error and its legal conclusions de novo.
Green, 568 F.3d at 795. In First Amendment cases,
however, the Court examines "constitutional facts"
de novo. Id. When the dispute concerns an
alleged Establishment Clause violation, "constitutional
facts" are the "district court's findings on
each part of the Lemon test." Id. at
795-96 (internal quotation marks omitted) (referring to the
tripartite test from Lemon v. Kurtzman, 403 U.S. 602
(1971)). That test has three parts-purpose, effect, and
entanglement- but the district court here grounded its
decision only on the "effect" prong. Accordingly,
we limit our analysis to whether there was an effect of
begin with standing. Because Article III standing is a
jurisdictional issue, we must satisfy ourselves that it
exists here. Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-60 (1992). Plaintiffs must meet three
requirements for standing: injury-in-fact, causation, and
redressability. Id. at 560-61. We are quickly
satisfied the latter elements exist, so the only issue we
address on appeal is injury-in-fact. "In the context of
alleged Establishment Clause violations, a plaintiff may
establish non-economic injury if 'directly affected by
the laws and practices against ...