Fight over monument:
An Arizona-based Christian advocacy group is joining the legal battle over whether a public lawn in Bloomfield, New Mexico, can display a privately funded Ten Commandments monument. The case could come down to whether the monument is a historical display, or a religious one.
A Scottsdale-based, Christian legal non-profit has asked the U.S. Supreme Court to intervene to protect a Ten Commandments monument in northwestern New Mexico.
The monument has been standing on a public lawn in Bloomfield since 2012. Lower federal courts have ordered it to be removed.
The non-profit Alliance Defending Freedom argued in its petition that U.S. courts have not provided a clear constitutional standard on whether displays of the Ten Commandments on public property are religious displays, or representations of history.
Historical, or religious?
Two Bloomfield residents sued the city in 2014, contending that allowing the monument to stand on public ground violated the Establishment Clause in the First Amendment of the U.S. Constitution.
In 2007, the Bloomfield City Council passed a resolution that allowed a private party to apply to install a historical monument in the then-empty lawn field. Five years later, the Ten Commandments monument was installed. Monuments of the Declaration of Independence, the Gettysburg Address and others followed.
City Manager Eric Strahl said Bloomfield, a city of about 8,000, didn’t fund any of the monuments. The monuments have nothing to do with religion, he said.
“It’s the Ten Commandments from a historical perspective,” Strahl said.
A federal district court in New Mexico ordered the small city to remove the monument in 2016. Bloomfield appealed to a federal appellate court in Denver, but the appeal was denied in February.
In response, the Alliance Defending Freedom filed a certiorari petition Thursday to the U.S. Supreme Court, hoping the court will review and reverse the lower court’s decision.
Jonathan Scruggs, senior counsel
for the Alliance Defending Freedom, said the non-profit has been helping local governments that are attempting to acknowledge U.S. history.
“The governments across the country should be free and honored to acknowledge the history,” he said.
Bloomfield is one of the non-profit’s clients.
The ‘Lemon Test’
Federal judges have offered a number of interpretations on the constitutionality of Ten Commandments displays. Many decisions have hinged on the so-called Lemon Test.
That test, which grew out of the 1971 case Lemon vs. Kurtzman, says a Ten Commandments display violates the Establishment Clause unless it has a significant non-religious purpose, does not have the primary effect of advancing or
inhibiting religion, and does not foster excessive entanglement between government and religion.
Different lower courts have come up with different rulings when applying the Lemon Test.
In Van Orden vs. Perry, a federal appeals court ruled that Texas had a valid secular reason to install a Ten Commandments monument on public ground at the state Capitol. The state was commending a private organization’s effort to reduce juvenile delinquency and also was recognizing a historical heritage, the court ruled. The U.S. Supreme Court upheld the decision in 2005.
But in Green vs. Haskell County Board of Commissioners, a panel for a different federal appeals court ruled in 2009 that the Oklahoma county could not install such a monument near its courthouse.
Haskell County petitioned the U.S. Supreme Court to review the case, but the petition was denied.
Scruggs said the Bloomfield case should be treated similarly to the Texas case because both monuments are surrounded by other historical monuments.
“We believe the outcome should be the same,” he said.
Paul Bender, a constitutional-law professor at Arizona State University, said it is hard to foresee how the Supreme Court will respond to the group’s request for review.
“We are going to have to wait and see,” Bender said.
Standards yield different results
Attorney Andrew Schultz, who represents the two Bloomfield residents, said he doesn’t believe the courts have been inconsistent. Rather, he said, two standards were set for two distinct circumstances.
He said the Bloomfield case should be compared with another 2005 Supreme Court case, McCreary County vs. ACLU of Kentucky, not with the Texas case.
McCreary County in Kentucky wanted to hang only the Ten Commandments on its courthouse’s wall. Members of the public who didn’t want them hanging alone on the wall immediately complained to the county, Schultz said.
The case came to the U.S. Supreme Court in 2005. On the same day the Texas case was decided, justices ruled it was unconstitutional for McCreary County to hang the Ten Commandments in the courthouse.
Schultz said two factors need to be considered in the Bloomfield case: how the public reacted to the monument, and whether other historical monuments already were standing before the Ten Commandments piece was installed.
Texas’ Ten Commandments monument received no complaints for the first 40 years it stood with 20 other monuments outside the state Capitol, while the monuments in Bloomfield and McCreary County generated complaints immediately, Schultz said.
“What the court said was when the people complained right away, that’s a big issue,” Schultz said. “And when the public entity goes out of its way to trying to find a way to put up the Ten Commandments when there is nothing else there, that’s a pretty clear indication that there’s an endorsement of religion.”
The U.S. Supreme Court receives about 8,000 petitions a year, on average. Only about 80 are reviewed.