JURIST Guest Columnist Roger Byron, Esq. Senior Counsel for First Liberty Institute discusses how Felix v. City of Bloomfield illustrates inherent flaws in the Lemon v. Kurtzman Establishment Clause test …

The late Justice Antonin Scalia once described the infamous Lemon v. Kurtzman test for analyzing Establishment Clause matters as a “ghoul” from a “late-night horror movie” that simply will not die. Felix v. City of Bloomfield, the US Court of Appeals for the Tenth Circuit’s most recent application of the Establishment Clause, shows that the monster is alive and well. Felix is, moreover, a study in the arbitrary and subjective analysis mandated by Lemon that has haunted Establishment Clause jurisprudence for decades.

The matter began during an April 2007 Bloomfield, New Mexico, city council meeting. City councilman Kevin Mauzy proposed the City allow him to erect privately funded monuments on the city hall lawn. He described a display comprised of a “series” of monuments such as the Declaration of Independence, the US Constitution, the Code of Hammurabi, and the Magna Carta. It was Mauzy’s understanding that the “nation was founded on the principles” outlined in the Ten Commandments, and he sought and was granted approval to erect a monument honoring the Decalogue. He considered it the “start of a series.”

Shortly thereafter, the City passed a resolution that formalized its policy for permanent monuments on the city hall lawn, requiring that they be granite or marble and “relate to the history and heritage of the City’s law and government.” The resolution also opened a “limited public forum” for display of permanent monuments on the city hall lawn but required any monument displayed to include a disclaimer that its message was not that of the City.

The initial fundraising efforts fell short. When Mauzy left office in 2008 he had abandoned the project. Two years later, however, Mauzy revived the effort. This time, his fundraising efforts were successful. Mauzy met with the city manager in June 2011 to decide on a location for the Ten Commandments monument. A front corner of the city hall lawn was chosen, which Mauzy believed would “allow room for the construction of additional monuments” on the lawn.

The monument was erected that July — along with a free-standing sign that described the public forum and disclaimed city endorsement of the monument’s message, in addition to the disclaimer inscribed on the monument itself — and then dedicated in a privately sponsored event on the Fourth of July. The dedication included an invocation, the singing of the national anthem, recital of the pledge of allegiance, and a traditional patriotic flag folding ceremony performed by the local VFW. That ceremony contained some traditional religious references, and Mauzy provided comments on limited government and the role of “God and his Ten Commandments” in the nation’s history and heritage. The monument — 60 inches tall, 30 inches wide, weighing over 3,400 pounds, and inscribed with Ten Commandments text from the King James Bible — was the second display on the city hall lawn, the first being a tree memorializing a past mayor of the City.

That same year the City approved and Mauzy erected the next in the series of monuments — a three part monument to the Declaration of Independence, which was dedicated on Veterans Day. Shortly afterward plaintiffs-appellees, two Wiccans represented by the ACLU, filed suit against the City, alleging the Ten Commandments monument violated the Establishment Clause. But the erection of monuments continued. In 2012 or 2013, the City approved and Mauzy erected a monument depicting the Gettysburg Address, which was dedicated on the Fourth of July. Similarly, in 2014, the City approved and Mauzy erected a monument to the Bill of Rights, which was also dedicated on the Fourth of July. The Ten Commandments monument was “neither the most nor least prominent monument on the lawn.”

The district court, with analysis substantially similar to that of the Tenth Circuit, found the Ten Commandments monument unlawfully endorsed religion. The City appealed.

Applying Pleasant Grove City v. Summum, the Tenth Circuit rightly concluded that the monuments on the city hall lawn were government speech, not private speech as the City intended. Thereafter, applying Lemon, as modified by Justice O’Connor’s “endorsement test” from Lynch v. Donnelly, the Tenth Circuit found the Ten Commandments monument “impermissibly gave the impression to reasonable observers that the City was endorsing religion.” The primary justifications provided for this conclusion were unconvincing. Those highlighted below illustrate the damage Lemon has inflicted on the Establishment Clause and its unsustainability as a vehicle for the objective rule of law.

With no supporting precedent, the Tenth Circuit first concluded that the religious “language” of the Ten Commandments inscribed on the monument “unquestionably” excluded the beliefs of “nonadherents” and thereby unlawfully endorsed religion. This contradicted US Supreme Court precedent directly on point. In Van Orden v. Perry, the Supreme Court upheld the display of a similar Ten Commandments monument on the Texas state Capitol grounds. Citing decades of Establishment Clause jurisprudence, the court found that “[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” The court observed “[s]uch acknowledgments of the role played by the Ten Commandments in our Nation’s heritage are common throughout America” and that the “historical role” of the Decalogue in the nation’s history has been recognized by the executive, legislative and judicial branches of our government. Notwithstanding Van Orden, the Tenth Circuit, applying Lemon, effectively created a per se rule that the very text of the Ten Commandments is an Establishment Clause violation.

With this rule as a springboard, the Tenth Circuit next found the monument’s location resulted in unlawful endorsement. Specifically, the monument was “not hidden or obscured” but “clearly visible to any onlooker” standing at the right place in front of city hall. According to the Tenth Circuit, this unobscured presence of the monument would cause the endorsement test’s “objective observer” to “associate the Monument with the government,” which association was, according to the Tenth Circuit, unlawful religious endorsement. Such reasoning is difficult to square with Van Orden and other Supreme Court guidance to the contrary, such as the court’s acknowledgment in School Dist. Of Abington Township v. Schempp that “religion has been closely identified with our history and government,” and its recognition in Lynch of the “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.” If opening sessions of governmental bodies with sectarian religious prayer comports with the Establishment Clause, as the Supreme Court recently held in Town of Greece v. Galloway, it is hard to imagine that same Clause excludes the Ten Commandments from a history of law and government display.

The Tenth Circuit also took issue with the monument’s Fourth of July dedication ceremony, specifically the invocation, the VFW’s flag folding ceremony, and Mauzy’s comments. By the Tenth Circuit’s reasoning, the private statements and actions of private actors and donors during a private dedication ceremony for what was intended as a private display, all devoid of City involvement or ratification, helped “dispel any remaining doubt” of the City’s unlawful religious endorsement. Unsurprisingly, Supreme Court precedent holds otherwise. In Summum, which involved a similar Ten Commandments monument, the Supreme Court unanimously held that by accepting a donated monument “a government entity does not necessarily endorse the specific meaning that any particular donor sees in the monument.” As the Supreme Court explained, “it frequently is not possible to identify a single ‘message’ that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor.” Under Lemon, however, the Tenth Circuit reached a contrary conclusion.

Finally, the Tenth Circuit found that the short time-frame between the monument’s erection and the lawsuit further demonstrated the monument’s religious endorsement. It relied on Green v. Haskell County, in which the Tenth Circuit, applying Lemon, ruled against another Ten Commandments monument in part due to the “prompt litigation response” to that display. It also relied on Justice Breyer’s concurrence in Van Orden, specifically Justice Breyer’s partial reliance on the “years of tranquility” enjoyed by the Van Orden monument to demonstrate a lack of perceived religious endorsement. Justice Breyer did not, however, establish or even mention the converse, i.e., that a presence of litigation soon after a monument’s erection implicates endorsement.

This was nothing more than the Tenth Circuit applying a heckler’s veto, another per se rule empowered by Lemon specially designed for Ten Commandments monuments: a new Ten Commandments monument is unlawful, or is at least highly suspect, if it is subject to a lawsuit soon after its erection. Again the Supreme Court has provided guidance to the contrary, explaining in Good News Club v. Milford Central School that a heckler’s veto has no place in an Establishment Clause context.

In sum, by applying Lemon, the Tenth Circuit implemented a per se rule against the language of the Ten Commandments and against the clear, unobscured display of the Ten Commandments in front of a government building; attributed to the government the unsponsored, unratified statements and actions of private parties; and applied a heckler’s veto against Ten Commandments monuments targeted by litigation soon after erection. By any measure this falls short of the objective rule of law.

Lemon is unsustainable. Each application of Lemon’s framework is a cry to the Supreme Court to replace it with a bright line rule for Establishment Clause matters. Felix adds another voice to the chorus.

Roger Byron, Esq. is Senior Counsel for First Liberty Institute, a national non-profit law firm dedicated to defending religious freedom for all Americans. Mr. Byron covered a broad range of issues in private practice. Before practicing law, Mr. Bryon served as a Surface Warfare Officer in the US Navy. Read more at FirstLiberty.

Suggested citation: Roger Byron, Lemon’s Latest Victim: Felix Shows Why Lemon Must Go, JURIST – Hotline, Dec. 1, 2016, http://jurist.org/hotline/2016/12/roger-byron-lemonslatestvictim.php.