Appeals Court Won’t Rehear Case Involving Ten Commandments Monument Outside NM Municipal Building February 9, 2017

Appeals Court Won’t Rehear Case Involving Ten Commandments Monument Outside NM Municipal Building

In 2007, Bloomfield (New Mexico) City Council member Kevin Mauzy proposed that citizens should be allowed to put a Ten Commandments monument in front of the city’s municipal building. The council accepted his proposal (even though nothing happened at the time) and a five-foot-tall granite monument was privately paid for and erected in July of 2011.


But a lawsuit filed by the ACLU on behalf of two local Wiccans put a stop to that. District Court Judge James A. Parker ruled in 2014 that the monument violated the Establishment Clause:

From the beginning, Mr. Mauzy signaled to the public the connection in his mind between the Ten Commandments monument project and the Christian community by fundraising through local churches exclusively, rather than through a variety of local civic organizations. Mr. Mauzy further underscored the religious nature of the Ten Commandments monument through his planning and organization of a dedication ceremony, which had numerous religious components.

Mauzy turned out to be his own worst enemy, implied Judge Parker:

While Mr. Mauzy testified that he erected the Ten Commandments monument for “historical” instead of “religious” purposes, Mr. Mauzy’s religious statements have thoroughly eclipsed his putative “historical” message.

Parker included a footnote shortly after that, which pointed out another misstep by Mauzy:

At trial Mr. Mauzy testified that he views this lawsuit as an attack on his religious freedom, thereby reaffirming the impression that the Ten Commandments monument was meant to communicate a religious message.

Not only did the judge rip apart every one of Mauzy’s arguments, he even suggested all the ways Mauzy could’ve kept his monument if only he and his lawyers weren’t so dumb.

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. Any variation in the many factors in this proceeding could favor the Defendant instead of the Plaintiffs. Nevertheless, the Court decides that the legal precedent, by which it is constrained, mandates a ruling that the Bloomfield Ten Commandments monument violates the Establishment Clause of the First Amendment.

The decision was eventually appealed, and there was some good news last November. The Tenth Circuit Court of Appeals agreed that this was nothing but a religious monument, affirming that it violated the Constitution.

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 city and its lawyers then tried again. Sure, they lost with a three judge panel, but maybe those judges weren’t representative of the entire Tenth Circuit. So they appealed to the entire bench in what’s known as an en banc review.

Looks like that didn’t work out either. The Tenth Circuit rejected the rehearing of the case (with Judge Neil Gorsuch, now a Supreme Court nominee, not weighing in on the matter).

City Manager Eric Strahl said the City Council likely will meet in executive session next week to decide the next step, which would be either removal of the monument or an appeal of the decision to the U.S. Supreme Court.

The city has the option of appealing to the Supreme Court, but it’s unlikely this case would be taken up when there’s really no confusion over what the law says. This is and always was a religious monument, and that’s why it’s illegal. City officials never even tried to pretend it was historical until the legal challenges began.

So this week’s rejection of the case was another victory for church/state separation — and another reminder that the Ten Commandments are not the basis for our nation’s laws.

(Large portions of this article were published earlier. Thanks to Brian for the link)

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