From RLUIPA Defense: New Mexico Federal Court Rules Ten Commandments Display Outside City Hall Violates Establishment Clause
Our friends at the RLUIPA Defense blog reported recently on a case out of New Mexico where a district court held 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.” Felix v. City of Bloomfield.
In 2007, the Bloomfield City Council approved adopted a resolution establishing a forum policy for the placement of historical monuments on the City’s lawn. In 2011, a former City Council member constructed a five-foot tall granite monument of the Ten Commandments on the lawn. The 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.”
Plaintiffs filed a lawsuit, alleging that the Ten Commandments monument violates the Establishment Clause of the First Amendment to the U.S. Constitution. The City argued it was a public forum and the monuments were just one of many displayed at City Hall. The plaintiffs argued that the monuments were "government speech." The District Court agreed with the plaintiffs 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, finding that for almost four years, there was no obvious sign that the City had opened the City Hall Lawn as a public forum. Instead, the City has merely provided ‘selective access’ to the lawn, and the court determined that the City 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.”
The court noted that was “a very close case,” and the result could have been different 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.”