Felix v. City of Bloomfield

841 F.3d 848, 2016 U.S. App. LEXIS 20235, 2016 WL 6634870
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 9, 2016
DocketNo. 14-2149
StatusPublished
Cited by15 cases

This text of 841 F.3d 848 (Felix v. City of Bloomfield) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Felix v. City of Bloomfield, 841 F.3d 848, 2016 U.S. App. LEXIS 20235, 2016 WL 6634870 (10th Cir. 2016).

Opinion

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, 125 S.Ct. 2722, 162 L.Ed.2d 729 (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, 125 S.Ct. 2854, 162 L.Ed.2d 607 (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, 125 S.Ct. 2854 (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, 104 S.Ct. 1355, 79 L.Ed.2d 604 (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;

BACKGROUND FACTS

The City of Bloomfield is a small community located in San Juan County, in the [852]*852northwest 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). Mau-zy’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 [853]*853where 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.

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Bluebook (online)
841 F.3d 848, 2016 U.S. App. LEXIS 20235, 2016 WL 6634870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felix-v-city-of-bloomfield-ca10-2016.