Disputes about the presence of Ten Commandments monuments on public property seem commonplace, but the Supreme Court has seldom tackled the issue. Will the current Court take up the controversial topic this year?
Last week, Bloomfield, New Mexico and a religious freedom advocacy group, the Alliance Defending Freedom, asked the Court to accept its appeal in a case called City of Bloomfield v. Felix from the federal 10th Circuit Court of Appeals.
The debate in Bloomfield goes back nearly a decade. In 2007, a Bloomfield city council member championed the placement of a large Ten Commandments monument in front of City Hall, and after several years, and several regulations, the privately funded monument was erected. In 2011, a disclaimer was placed next to the monument by the now-former councilman, identifying the space as a public forum and inviting petitions from the public for other historical monuments to be placed in the location.
Two members of the Wicca faith then sued Bloomfield, claiming the monument violated the First Amendment’s prohibition of a government endorsement of religion. Shortly before the lawsuit was filed, Bloomfield placed a Declaration of Independence monument in the same public forum. And after the lawsuit started, it added Gettysburg Address and Bill of Rights monuments.
In 2014, a United States District Court in New Mexico sided with the Wiccans and the American Civil Liberties Union, which represented them. “The Ten Commandments monument is government speech regulated by the Establishment Clause because the Ten Commandments monument is a permanent object located on government property and it is not part of a designated public forum open to all on equal terms,” said Senior District Judge James A. Parker.
Parker said his decision was a “difficult endeavor,” citing Supreme Court decisions and comments about Establishment Clause cases.
A 2004 U.S. Supreme Court decision in Van Orden v. Perry held that Texas could keep its Ten Commandments monument because of its historical meaning and the location at the state capitol didn’t violate the First Amendment’s Establishment Clause. But the Court also ruled in a 2005 case, McCreary County v. ACLU, that two Ten Commandments displays in Kentucky violated the Establishment Clause because their purpose was to advance religion.
Parker cited a comment made in a 2011 dissent from Justice Clarence Thomas about Establishment Clause cases where Thomas said such “jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone's guess.”
But Parker said the timing of Bloomfield’s placement of the Ten Commandments monument, its special relationship with the former councilman, and its inability to publicly open the alleged public forum space to "many different historical viewpoints" led to his decision.
On appeal, the three-judge 10th Circuit Appeals panel again sided with the plaintiffs. “The apparent purpose and context of the Monument’s installation would give an objective observer the impression of official religious endorsement. In arriving at this conclusion, we examine the text of the Monument, its placement on the lawn, the circumstances of its financing and installation, and the timing of this litigation,” the judges said.
The full Circuit Appeals decided not to hear the case, but two judges dissented in that decision. Then-federal judge Neil Gorsuch didn’t take part in that February 2017 decision after his nomination to the Supreme Court.
Judge Paul Joseph Kelly Jr. said the decision “continues the error of our Establishment Clause cases.”
“More particularly, the public display of memorials with historical significance should generally not be construed as an ‘establishment of religion,’ even if one of the monuments also happens to be religious in nature,” Kelly said. “Though returning to a more historically-congruent understanding of the Establishment Clause is the ultimate province of the Supreme Court, there is much we could have done to correct our law in this area while still operating within the proper boundaries of an inferior court.”
In its petition to the Supreme Court, the Alliance Defending Freedom said it wants the Supreme Court to settle two questions: the Establishment Clause standard applied to monuments and if someone can sue on First Amendment grounds if they are offended by a monument.
The Court will consider the appeal at private conference in the near future, and four Justices need to vote to accept the case for arguments for it to continue.
Scott Bomboy is the editor in chief of the National Constitution Center.