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Felix v. City of Bloomfield

United States Court of Appeals, Tenth Circuit

November 9, 2016

JANE FELIX; B.N. COONE, Plaintiffs - Appellees,
CITY OF BLOOMFIELD, Defendant-Appellant. LIBERTY COUNSEL, Amicus Curiae.

         Appeal 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 Defendant-Appellant.

          Andrew 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 Plaintiffs-Appellees.

          Mathew 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 Curiae.

          Before BACHARACH, EBEL, and McHUGH, Circuit Judges.

          EBEL, Circuit Judge.

         The Ten 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)).

         In this 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.

         We 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.


         The 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.

         At an 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.

         In July 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).

         As 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 ground.

         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).

         Mauzy 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.

         Later 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.

         After 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 other citizens.


         We 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 endorsement.[1]


         I. Standing

         We 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 ...

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