Felix, et al v. City of Bloomfield

Filing

[10420738] Affirmed. Terminated on the merits after oral hearing. Written, signed, published; Judges Bacharach, Ebel (authoring judge) and McHugh. Mandate to issue. [14-2149]

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FILED
United States Court of Appeals
Tenth Circuit

PUBLISH

November 9, 2016

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________

Elisabeth A. Shumaker
Clerk of Court

JANE FELIX; B.N. COONE,
Plaintiffs - Appellees,
v.

No. 14-2149

CITY OF BLOOMFIELD,
Defendant - Appellant.
-----------------------------LIBERTY COUNSEL,
Amicus Curiae.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:12-CV-00125-JAP-RHS)
_________________________________
Jonathan A. Scruggs, Alliance Defending Freedom, Scottsdale, Arizona (David A.
Cortman and Kevin H. Theriot, Alliance Defending Freedom, Scottsdale, Arizona, Joel
Oster, Oster Law Firm, Shawnee, Kansas, and Ryan Lane, T. Ryan Lane, P.C., Aztec,
New Mexico, with him on the briefs), for Defendant-Appellant.
Andrew G. Schultz, Rodey Dickason Sloan Akin & Robb, P.A., Albuquerque, New
Mexico (Matthew M. Beck, Rodey Dickason Sloan Akin & Robb, P.A., Albuquerque,
New Mexico, Alexandra Freedman Smith, ACLU of New Mexico Foundation,
Albuquerque, New Mexico with him on the briefs), for Plaintiffs-Appellees.
Mathew D. Staver, Anita L. Staver, and Horatio G. Mihet, Liberty Counsel, Orlando,
Florida, and Mary E. McAlister, Liberty Counsel, Lynchburg, Virginia, filed a brief for
Amicus Curiae.

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_________________________________
Before BACHARACH, EBEL, and McHUGH, Circuit Judges.
_________________________________
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 (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 (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 (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 (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
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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 northwest 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.
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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). Mauzy’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
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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 where 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
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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. But the event was inaugurated with prayer from a church
deacon, the flag-folding was set to religious narration, and Mauzy delivered remarks
emphasizing and celebrating Christian precepts. Among other comments laden with
religious meaning, Mauzy said, “Some would believe this monument is a new thing.
They have been so busy trying to remove God from every aspect of our lives . . . .
God and his Ten Commandments continue to protect us from our evil.” (Id. at 465).
He also read the disclaimer on the bottom of the Monument out loud.
Later the same month, on July 25, 2011, the City Council approved a revised
forum policy proposed by Mauzy, Resolution #2011-15 (“Forum Policy No. 2”),
which removed the word “permanent” from the earlier version and required donors to
reapply every ten years to keep their monuments on the lawn. About four months
later, in October 2011, the council approved Mauzy’s proposed Declaration of
Independence monument, which he installed in November 2011. He held another
dedication ceremony for that monument, but without any religious components.

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After Plaintiffs filed suit on February 8, 2012, the City Council approved, and
Mauzy later installed, monuments depicting the Gettysburg Address (dedicated July
4, 2012) and the Bill of Rights (dedicated July 4, 2014). Both had dedication
ceremonies devoid of religious overtures. As of the time of filing, Mauzy was the
only person to apply for or install monuments on the City Hall Lawn. Bloomfield
had not advertised its forum policy nor sought monuments from any other citizens.

STANDARD OF REVIEW
We ordinarily review a district court’s factual findings for clear error and its
legal conclusions de novo. Green, 568 F.3d at 795. In First Amendment cases,
however, the Court examines “constitutional facts” de novo. Id. When the dispute
concerns an alleged Establishment Clause violation, “constitutional facts” are the
“district court’s findings on each part of the Lemon test.” Id. at 795-96 (internal
quotation marks omitted) (referring to the tripartite test from Lemon v. Kurtzman,
403 U.S. 602 (1971)). That test has three parts—purpose, effect, and entanglement—
but the district court here grounded its decision only on the “effect” prong.
Accordingly, we limit our analysis to whether there was an effect of endorsement.1

1

In finding an impermissible effect of religious endorsement in this case, the
district court relied partly on observations about the apparent purpose of the
monument. As we explain below, that makes sense. What a reasonable observer
perceives as the purpose of a religious display is relevant to whether there is an
“effect”—or impression—of government endorsement. In light of the relevance of
perceived purpose to the “effect” prong of the Lemon test, our analysis appropriately
accounts for the apparent motivations for erecting the display.
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DISCUSSION
I.

Standing
We begin with standing. Because Article III standing is a jurisdictional issue,

we must satisfy ourselves that it exists here. Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-60 (1992). Plaintiffs must meet three requirements for standing:
injury-in-fact, causation, and redressability. Id. at 560-61. We are quickly satisfied
the latter elements exist, so the only issue we address on appeal is injury-in-fact. “In
the context of alleged Establishment Clause violations, a plaintiff may establish noneconomic injury if ‘directly affected by the laws and practices against which their
complaints are directed.’” Green, 568 F.3d at 793 (quoting O’Connor v. Washburn
Univ., 416 F.3d 1216, 1222-23 (10th Cir. 2005)).
Bloomfield argues Plaintiffs lack standing because “being offended” is not an
injury-in-fact, and Plaintiffs never actually read the text on the Monument.
Bloomfield cites Town of Greece v. Galloway for the notion that offense is no longer
enough for standing. 134 S. Ct. 1811, 1826 (2014). But the words “standing,”
“jurisdiction,” or “Article III” do not appear anywhere in the Galloway decision; that
case only discussed the merits of an Establishment Clause claim. Id. at 1826-28. In
the Tenth Circuit, we have decided multiple cases where direct contact with religious
monuments on public property sufficed for standing. See, e.g., Am. Atheists, Inc. v.
Davenport, 637 F.3d 1095, 1113-14 (10th Cir. 2010) (large white crosses on side of
highway memorializing fallen state troopers); Green, 568 F.3d at 788, 793-94 (Ten

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Commandments monument erected on county courthouse lawn); O’Connor, 416 F.3d
at 1218-19, 1222-23 (artwork on college campus that was offensive to Catholics).
Plaintiffs have had the requisite direct contact here. The Monument sits
outside the main entrance to Bloomfield City Hall, which includes the utilities
department where people pay water bills. It is at the front of the City Hall Lawn, and
is visible from a major road through town (U.S. 550). Both Plaintiffs are polytheistic
Wiccans and testified they feel excluded by the Ten Commandments, particularly the
first four commandments.2 And while Bloomfield argues that past exposure does not
create an “imminent injury,” the facts found by the district court establish ongoing
injuries and changes to Plaintiffs’ behavior resulting from the highly visible religious
display. Felix stopped going to City Hall to pay her water bills so she could avoid
the Monument, but still sees it from the road five or six times a week. Coone drives
past the Monument three or four times a week and sees it up-close every month when
he goes to pay his water bill. That kind of exposure is more than enough for
standing.
Bloomfield further argues that Plaintiffs lack standing because they have never
read the text on the Monument. Merely seeing the Monument, Bloomfield says, is
not contact that is sufficiently “frequent, direct, and imminent” for standing purposes.
(Aplt. Br. 75). That proposition is supported only by inapposite case law from

2

The First Commandment on the monument reads, “Thou shalt have no other
gods before me”—a particularly disconcerting command for polytheists.
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another federal circuit, and we decline to bind ourselves thereby.3 Bloomfield offers
no case from this Court that stands for the rule that a person must study an offensive
monument in order to bring a claim in federal court. In fact, the injury requirement is
often described as having to “view a religious object,” not examine it scrupulously.
O’Connor, 416 F.3d at 1223 (emphasis added) (internal quotations omitted). Once
Plaintiffs learn the Monument is the Ten Commandments, they will know what it is
whenever they view it, even from afar. Plaintiffs have therefore established the kind
of contact required for Article III standing.

II.

Government speech
We next consider the nature of the speech. The Establishment Clause

constrains government speech only. See Bd. of Educ. v. Mergens ex rel. Mergens,
496 U.S. 226, 250 (1990). Because of that limitation, Bloomfield argues the
Monument is permissible because it is a private person’s speech existing in a public
forum. But the Supreme Court has held that permanent monuments are government

3

The D.C. Circuit held in Chaplaincy of Full Gospel Churches v. U.S. Navy
(In re Navy Chaplaincy), 534 F.3d 756, 764-65 (D.C. Cir. 2008), that “[w]hen
plaintiffs are not themselves affected by a government action except through their
abstract offense at the message allegedly conveyed by that action, they have not
shown injury-in-fact to bring an Establishment Clause claim . . . .” (Emphasis
omitted). This case does not apply here for two reasons. First, the harm alleged here
is more concrete than merely an “abstract” objection to unconstitutional conduct.
Second, In re Navy Chaplaincy expressly set itself apart from “religious display”
cases. Id. at 765 (qualifying that its holding applies “outside the distinct context of
the religious display and prayer cases”); id. at 764 (“[W]e nonetheless find
significant differences between plaintiffs’ case and the religious display and prayer
cases.” (Citing as an example a Ten Commandments case)).
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speech, regardless of whether a private party sponsored them. Pleasant Grove City v.
Summum, 555 U.S. 460, 470-71 (2009) (“Just as government-commissioned and
government-financed monuments speak for the government, so do privately financed
and donated monuments that the government accepts and displays to the public on
government land.”); see also Davenport, 637 F.3d at 1111, 1115 (“[T]he fact that [a
private non-profit organization], not Utah, owns the memorial crosses does not affect
our determination of whether they are government speech.”).
The question, therefore, is whether the Monument is permanent. The
Monument is over five feet tall weighing over 3,400 pounds, with a foundation of
steel, concrete, and wood embedded fourteen inches in the ground. The foundation
anchors the granite tablet with steel dowels to keep the Monument upright.
Moreover, Forum Policy No. 1—under which the Monument was approved, built,
and dedicated—specifically used the term “permanent” three times to describe the
monuments it would allow. The Supreme Court did not detail what makes a
monument “permanent” when it decided Summum, but we are confident the Ten
Commandments here meets the standard.
It is no answer for Bloomfield to say that, under Forum Policy No. 2, the City
makes donors reapply every ten years under threat of their monuments’ removal.
Any monument can be removed with a big enough construction crew. But
Bloomfield has no plans to remove the Monument and imposes no limit on how many
ten-year periods will be permitted. The Monument here is like the crucifixes in
American Atheists, Inc. v. Davenport, where even though a private organization
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reserved the right to remove the roadside crosses, they were “permanent enough to
constitute government speech.” 637 F.3d at 1116. As a permanent monument on
government property, the Monument here is government speech subject to the
limitations of the First Amendment’s Establishment Clause.

III.

Establishment Clause

The First Amendment reads, “Congress shall make no law respecting an
establishment of religion[.]” U.S. Const. amend. 1. That rule also binds the state
governments through the Fourteenth Amendment. See Everson v. Bd. of Educ. 330
U.S. 1, 14-15 (1947). In resolving a challenge to a Ten Commandments display, the
Tenth Circuit applies the three-part test from Lemon v. Kurtzman, 403 U.S. 602
(1971), as refined by Justice O’Connor’s concurrence in Lynch v. Donnelly, 465 U.S.
668, 687-94 (1984). See Green, 568 F.3d at 796.
In Lemon, the Supreme Court set out a tripartite framework for Establishment
Clause cases. To survive constitutional scrutiny, government action “(1) must have a
secular legislative purpose, (2) must have a principal or primary effect that neither
advances nor inhibits religion, and (3) must not foster an excessive government
entanglement with religion.”4 Green, 568 F.3d at 796 (citing Lemon, 403 U.S. at
612-13).

4

Plaintiffs’ arguments do not implicate the third prong of Lemon regarding
excessive entanglement. Accordingly, we do not address it.
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Justice O’Connor’s modification, the so-called “endorsement test,” applies to
the first and second prongs of Lemon. Under this modification, “the government
impermissibly endorses religion if its conduct has either the purpose or the effect of
conveying a message that religion or a particular religious belief is favored or
preferred.” Green, 568 F.3d at 796 (enumeration omitted) (internal quotation marks
omitted). In this case, because the district court ultimately relied on the effect prong,
we confine our analysis to the effect of Bloomfield’s conduct, although, consistent
with the district court’s approach, an apparent governmental purpose may inform the
effect-prong analysis. Particularly in light of the circumstances surrounding the
original installation of the Ten Commandments monument, we find Bloomfield
impermissibly gave the impression to reasonable observers that the City was
endorsing religion.
What does it mean for conduct to have the “effect” of endorsing religion? The
effect of endorsement is measured from the perspective of an “objective observer
who is aware of the purpose, context, and history of the symbol.” Id. at 799 (quoting
Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (10th Cir. 2008)). The
“objective observer is presumed to know far more than most actual members of a
given community.” Id. at 800 (internal quotation marks omitted). This imaginary
person would be conscious of “the circumstances surrounding the Monument’s
placement on the . . . lawn, its precise location on the lawn and its spatial relationship
to the other . . . monuments, and also the . . . community’s response to the

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Monument. In particular, the reasonable observer would be aware of [Bloomfield’s]
religious motivation for seeking the erection of the Monument.” Id.
Although we are analyzing here only the “effect” prong of the Lemon test
(with the “endorsement” gloss offered by Justice O’Connor), we do not ignore
purpose. Id. (grounding its conclusion on Lemon’s “effect” prong, in part, on the
observation that “a reasonable observer would be aware of [the sponsor’s] religious
motivation for seeking erection of the monument” (emphasis added)); id. at 802
(noting that the government “left the impression that a principal or primary reason for
the erection and maintenance of the display was religious”). In focusing on the effect
of the Monument and its history, we ask, in part, how a reasonably perceived
governmental purpose impacts the effect such a monument will have on a reasonable
observer. See Borden v. Sch. Dist., 523 F.3d 153, 175 (3d Cir. 2008) (The
endorsement test “does not focus on the government’s subjective purpose when
behaving in a particular manner, but instead focuses on the perceptions of the
reasonable observer.”) (quoted by Green, 568 F.3d at 799 (10th Cir.)); cf. McCreary
Cty. v. ACLU of Ky., 545 U.S. 844, 863 (2005) (“A secret motive stirs up no strife
and does nothing to make outsiders of nonadherents[.]”); id. at 900-01 (Scalia, J.,
dissenting) (“Because in the [McCreary majority’s] view the true danger to be
guarded against is that the objective observer would feel like an ‘outsider’ or ‘not a
full member of the political community,’ its inquiry focuses not on the actual
purpose of the government action, but the ‘purpose apparent from government
action.” (second emphasis added) (internal quotation marks and alterations omitted)).
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That makes sense because the focus of the endorsement test is on the message
objectively communicated by the government’s conduct, and how that message might
cause some community members to feel like outsiders. See Lynch v. Donnelly, 465
U.S. 668, 687 (1984) (O’Connor, J., concurring) (“Endorsement sends a message to
nonadherents that they are outsiders, not full members of the political community,
and an accompanying message to adherents that they are insiders, favored members
of the political community.”). If an objective observer has a reasonable impression
that government conduct was religiously motivated, then the official action is more
likely to have the “effect” of sending a message that nonadherents are “outsiders, not
full members of the political community.” Id. Accordingly, a government’s
motivation—as perceived by an objective observer—is relevant to whether the action
had an effect of endorsing religion.
With that understanding, we now examine Bloomfield’s conduct, as it would
be perceived by an objective observer who is aware of the apparent purpose and
specific context of the Ten Commandments display.

A. Circumstances Manifesting Endorsement
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.

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1. The text of the Ten Commandments is unmistakably religious
We begin with the text. The language on the granite tablet—taken from the
King James Version of the Bible—unquestionably has the effect of excluding the
belief systems of nonadherents. See McCreary Cty., 545 U.S. at 851, 869 (describing
the “unmistakably religious statement” conveyed by the King James Version of the
Ten Commandments). Plaintiffs are a case in point. As polytheistic Wiccans, they
believe in more than one deity. The first Commandment, however, admonishes the
reader that “Thou shalt have no other gods before me.” (See App. Fig. 1). It is hard
to imagine a religious statement that is more likely to give Plaintiffs the impression
they do not belong.5
2. The location of the Monument suggests endorsement
We also find the Monument’s location problematic. It resides directly in front
of Bloomfield’s principal government building. Moreover, it is not hidden or
obscured by other monuments and it is clearly visible to any onlooker standing
directly in front of the lawn—or even driving by on the highway. Cf. Cty. of
Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 599, 601-02 (1989)
(finding an Establishment Clause violation when the County set up a nativity scene
on “the Grand Staircase, the ‘main’ and ‘most beautiful part’ of the building that is
the seat of county government”) (abrogated on other grounds by Galloway, 134 S. Ct.
5

We do not assess the endorsement effect from Plaintiffs’ perspective, but
rather from the view of an imaginary objective observer. Plaintiffs, however, are a
good example of how public display of the Ten Commandments can risk making
“outsiders” of “nonadherents.” Lynch, 465 U.S. at 687 (1984) (O’Connor, J.,
concurring).
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at 1821). Here the Ten Commandments monument is located immediately next to the
sidewalk leading into the municipal building of the City of Bloomfield. (See App.
Fig. 2). An objective observer going to pay his water bill, or merely driving by in his
car, would associate the Monument with the government, and accordingly glean a
message of endorsement which the Establishment Clause proscribes.
3. The circumstances of the Monument’s financing and unveiling
If the Monument’s content and position only hint at the City’s endorsement,
the circumstances of the approval, fundraising, and installation dispel any remaining
doubt. In analyzing this context, we see strong parallels to our decision in Green v.
Haskell County, where we found an Establishment Clause violation based on the
government’s conduct when a Ten Commandments monument was originally
installed. 568 F.3d at 790-92, 795-808. First, like in Green, here Mauzy initially
fundraised exclusively through local churches, rather than other local civic
organizations. Id. at 790 (noting the Monument was sponsored by religious groups).
Second, also as in Green, the dedication ceremony here was decidedly religious. Id.
at 791 (observing that local pastors prayed with the audience and gave remarks). The
occasion began with an invocation by a deacon of a local church, the flag-folding was
set to religious narration, and Mauzy gave a speech riddled with Christian allusions,
including an exhortation that “God and his Ten Commandments continue to protect
us from our evil,” and other similarly religious overtures. (Aplt. App. 465). Third,
unlike in Green (which makes this an even clearer case), the Monument was
originally approved and erected in isolation and began as the focus of the
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government’s efforts.6 The Supreme Court has told us that “[w]hen the government
initiates an effort to place [the Ten Commandments] alone in public view, a religious
object is unmistakable.” McCreary, 545 U.S. at 869; cf. ACLU of Ky. V. Mercer
Cty., 432 F.3d 624, 638 (6th Cir. 2005) (finding no impermissible endorsement effect
because the county “did not attempt to erect the monument in isolation . . . before
posting the . . . display”). If a religious motivation is “unmistakable” merely when
the Ten Commandments is erected alone, then there can be no doubt about the City’s
apparent motivations here when it not only installed the Monument in isolation, but
also did so with the initial financial backing of religious organizations and unveiled
the Monument at a religious ceremony. Any reasonable and objective observer
would glean an apparent religious motivation from these circumstances.
4. The timing of this lawsuit
The timing of this lawsuit sheds light on whether a reasonable observer
perceived Bloomfield’s conduct as endorsing religion. The Supreme Court decided
two separate Ten Commandments cases on the same day with different outcomes,
and the “determinative” factor for the different outcomes appeared to be litigation
timing. In Van Orden v. Perry, the Court upheld a Ten Commandments monument
which had stood legally uncontested for forty years. 545 U.S. 677, 702 (2005)
(Breyer, J., concurring in the judgment). In McCreary County v. ACLU of Kentucky,
6

While Mauzy proposed the Monument as the “start of a series,” he did not
initially seek permission to build any other monument, the City did not originally
approve any other monuments, and Mauzy’s fundraising efforts centered exclusively
on the Ten Commandments. We believe an objective observer would glean a
religious motivation from these circumstances.
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on the other hand, the Court invalidated a Ten Commandments display which was
challenged mere months after it was posted. 545 U.S. 844, 851-52, 881 (2005).
Justice Breyer, whose vote was the only one that changed in those cases, explained
that the years of tranquility in Van Orden showed that “few individuals, whatever
their system of beliefs, [were] likely to have understood the monument as amounting,
in any significantly detrimental way, to a government effort to favor a particular
religious sect, primarily to promote religion over nonreligion.” Van Orden, 545 U.S.
at 702 (Breyer, J., concurring in the judgment). He said that case “differ[ed] from
McCreary, where the short (and stormy) history of the courthouse Commandments’
display demonstrates the substantially religious objectives of those who mounted
them.” Id. at 703. This difference, he said, was “determinative.” Id. at 702.
The Tenth Circuit also found this to be a significant factor in Green, 568 F.3d
at 806-07, where the plaintiff challenged the Ten Commandments display “less than
one year after the Monument was unveiled.” Id. at 807. We said the timing
difference was “striking,” and that the “prompt litigation response to the Monument”
there added force to the conclusion that an objective observer viewed the display as a
religious endorsement. Id. In our case, Plaintiffs here filed their lawsuit only seven
months after the Monument was erected. In light of these Supreme Court and Tenth
Circuit authorities, we conclude the timing factor weighs in Plaintiffs’ favor.

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B. Mitigating Considerations
There are some considerations, however, that Bloomfield argues cut the other
way. First, it contends a reasonable observer would attribute the message to Mauzy,
not to Bloomfield. Second, even if the Monument’s context suggests City
endorsement, the disclaimer would dispel any connection between Bloomfield and
the Monument’s religious message. Third, the forum policy acted as a secularizing
filter, so an objective observer would understand the City’s motivation to be secular
because the Monument was actually erected after the adoption of the policy. Fourth,
the City installed other historical nonreligious monuments after erecting the Ten
Commandments, so an objective observer would have to “stare into the sun” to miss
the secular message communicated by the display as a whole. (Aplt. Br. 73). We
find these arguments unpersuasive.
1. Attributing the message to Bloomfield
Whatever the nature of Mauzy’s message, says Bloomfield, a reasonable
observer would not attribute that message to the City. We disagree. First, as we
explained earlier, when the government accepts a donated permanent monument and
displays it on public property, it is adopting the message conveyed by that monument
as the government’s own speech. Pleasant Grove City v. Summum, 555 U.S. 460,
470-72 (2009); id. at 471 (“[P]ersons who observe donated monuments routinely—
and reasonably—interpret them as conveying some message on the property owner’s
behalf.”). Second, on these facts it was especially apparent that Mauzy’s conduct
enjoyed the City’s imprimatur. As the Supreme Court reminded us, when a religious
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object is displayed in the “main” part of an important government building, “[n]o
viewer could reasonably think that it occupies th[at] location without the support and
approval of the government.” Allegheny, 492 U.S. at 599-600. Moreover, Mauzy
was a city council member when the Ten Commandments was proposed and
approved in 2007, even if his later actions were taken while he was a private citizen.
The City knew of his motivation yet still approved the monument even over
community members’ objections at the 2007 city council meeting. The City also
stood by its decision after local newspapers began publishing letters of dissent by
community members, and it held firm again at the 2011 city council meeting over a
present and objecting city council member. And finally, two active City Council
members donated to the monument’s construction through their church. Thus,
viewing all these circumstances together, an objective observer would fairly attribute
Mauzy’s religious message to the City.

2. The ineffectiveness of the disclaimers
It is true there are two disclaimers that purport to remove the City’s
endorsement—one etched into the tablet itself, and another on a freestanding sign
near the Monument. Bloomfield says these signs prevent the impression that the City
supports the Monument’s religious message. Again, we disagree. First, we have
held that a government’s decision to allow placement of a religious display on public
land “cannot be overshadowed by its attempts to distance itself from the message
conveyed by [that] display[].” Am. Atheists, Inc. v. Davenport, 637 F.3d 1095,
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1115-16 (10th Cir. 2010) (referring to a State’s disclaimer that it “neither approves or
disapproves the memorial marker,” id. at 1112 (internal quotation marks omitted), in
an Establishment Clause case about large memorial crosses erected on public land).
So we are generally skeptical of a disclaimer’s ability to negate the more powerful
statement of endorsement conveyed by a decision to place the Monument on
government land.
These particular disclaimers confirm our skepticism. The first disclaimer
engraved into the granite tablet is small and inconspicuous; a reasonable observer
might have to get on his knees and inspect closely to glean its content. (See App. Fig.
1). It is not unlike the rapid-fire warnings at the end of prescription drug
commercials, where it is obvious the company has slipped them in as a barely audible
afterthought just to comply with the rules. So too here. We accordingly give little
effect to that disclaimer.
The second disclaimer is more prominent and contains more information, but
its fate is no different. The text begins, “The City has intentionally opened up the
lawn around City Hall as a public forum where local citizens can display monuments
that reflect the City’s history of law and government.” (Aplt. App. 287). This
sentence contains a reference both to the law-and-government theme of the lawn, and
the lawn’s character as a public forum. At the outset, we acknowledge the presence
of other historical monuments here dampens the effect of endorsement—the presence
of the Gettysburg Address, Declaration of Independence, and Bill of Rights could
“change[] what viewers fairly understand to be the purpose of the display.” Lynch v.
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Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J., concurring). As we explain more
fully below, however, whatever offsetting effect these later-added monuments have
does not negate the plainly religious message communicated by the Monument itself,
its prominent location in front of a main government building, and the circumstances
of its financing and unveiling. Moreover, the characterization of the lawn as a
“public forum” belies the position we have taken in this opinion. Following the
Supreme Court’s command in Summum, we held public property displaying an
essentially permanent monument is not a “public forum” as a matter of law. For the
sign to claim otherwise, therefore, can have no legal significance.
The text of the disclaimer continues, “Any message contained on a monument
does not necessarily reflect the opinions of the City, but are statements from private
citizens.” (Aplt. App. 287) (emphasis added). Again, Summum says otherwise, but
even if an objective observer did not know that, this language is too equivocal to
communicate a message of non-endorsement. A reasonable person would read this
and understand the Monument’s message might reflect the City’s views, just not
“necessarily” so. Finally, the disclaimer says, “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.). This is
an invitation in name only. There is no evidence that anyone except Mauzy has come
forward to accept it, nor that nonadherents could readily muster the resources
necessary to erect opposing monuments of acceptable size and grandeur to warrant
placement on this property, nor even that there is remaining room on the lawn to
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accommodate more monuments—let alone available space to erect a monument that
competes with the Ten Commandments for visibility.
Context reveals what the disclaimer’s text attempts to obscure. The sign is not
attached to any specific monument, rather it is a freestanding sign staked in the grass
that refers, by its own terms, to all the monuments on the lawn. How can Bloomfield
say the monuments, taken together, communicate the City’s secular message about
law and government, while also maintaining that the monuments do not express the
City’s views? We cannot reconcile those positions, and an objective observer
reading this disclaimer would be similarly confused. Thus, the disclaimers offer no
refuge to Bloomfield.

3. The forum policy does not negate the endorsement effect
The forum policy required monuments to “relate to the history and heritage of
the City’s law and government.” (Aplt. App. 288). Therefore, all monuments
approved under this policy, says Bloomfield, have the manifest purpose of advancing
the City’s history and government, not to endorse any religion. And critically,
Bloomfield argues it adopted the forum policy before the Ten Commandments was
finally approved and erected in 2011. But as the district court properly noted, the
2011 approval of the Monument under the forum policy “occurred in the shadow” of
the City’s original 2007 approbation—which was before the adoption of the forum
policy. (Aplt. App. 463). It was the Monument’s original approval, the district court
found, that likely prompted the forum policy in the first place. Because “reasonable
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observers have reasonable memories,” McCreary, 545 U.S. at 866, the religious
purpose apparent from that 2007 approval—which occurred without the secularizing
filter of the forum policy—would not be ignored. Furthermore, even if there were a
secondary secular motive, that would not be inconsistent with the primary effect of
religious endorsement conveyed by this particular monument. Therefore, this
argument does not help Bloomfield.

4. Adding secular monuments to the lawn did not cure the taint
The Ten Commandments monument was originally proposed, approved,
financed, and erected in isolation.7 But things changed. Shortly after the erection of
the Ten Commandments, Bloomfield took actions that may have lessened the original
endorsement effect conveyed by the initial apparent purpose and circumstances.
After the Ten Commandments stood alone on the lawn, the City approved Mauzy’s
request for subsequent monuments depicting the Declaration of Independence, the
Bill of Rights, and the Gettysburg Address. These additions could potentially be
seen as “curative” measures by signaling to the objective observer that no religious
endorsement is intended.8

7

Mauzy proposed it would be the “start of a series,” (Aplt. App. 283), but as
explained above, other context considerations suggest it was the sole focus of the
City and Mauzy at the time it was installed.
8
There is another kind of change not implicated here, but worthy of
mentioning. It is the kind of change wrought by the secularizing passage of time,
which itself can be a curative palliative. Laurence H. Tribe, American Constitutional
Law 1294-96 (2d ed. 1988) (citing examples where “history had removed the
religious significance” of various traditions). Community attitudes evolve and
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We begin by acknowledging that curative actions can be considered in
determining whether a permanent monument has lost its initial religious effect due to
subsequent events surrounding and impacting that monument. See McCreary Cty. v.
ACLU, 545 U.S. 844, 873-74 (2005). In McCreary, the government erected a Ten
Commandments display—with no accompanying secular objects—in a manner that
impermissibly endorsed religion. Id. at 850, 866. The government then attempted to
cure the taint of that endorsement by adding other secular objects to the display
(including the Magna Carta, Declaration of Independence, state constitution, and
others), and entitled the collection “The Foundations of American Law and
Government Display.” Id. at 856. The Supreme Court did “not decide that the
Counties’ past actions forever taint any effort on their part to deal with the subject
matter.” Id. at 873. Rather, it acknowledged that “courts are fully capable of
people come to view a symbol differently, even if the emblem itself is unchanged.
See ACLU of Ill. v. City of St. Charles, 794 F.2d 265, 271 (7th Cir 1986) (citing the
holly wreath, the Christmas tree, and the five-pointed star as examples of originally
religious symbols which “have lost their Christian connotations”). Christmas wreaths
are a good example—once representing the Crown of Thorns worn by Jesus Christ at
his crucifixion, id., but now a common holiday decorative hanging. Acknowledging
that “the interpretation of a monument can evolve” over time, the Supreme Court
cited the Statue of Liberty as an example which had first been merely a symbol of
international friendship, but had morphed into a global icon of freedom and
opportunity. Summum, 555 U.S. at 477. While the Ten Commandments may have
evolved in some respects—having secured an important role in our Nation’s
heritage—it has not lost its fundamentally religious character. See Van Orden, 545
U.S. at 688 (2005) (plurality opinion) (acknowledging the “role played by the Ten
Commandments in our Nation’s heritage”); id. at 690 (“Of course, the Ten
Commandments are religious—they were so viewed at their inception and so
remain.”). Therefore, we instead address a different kind of change: the kind that
occurs more rapidly, and does not involve shifting community attitudes, but rather is
a change in government motivations or in the presentation of the disputed religious
display itself.
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adjusting . . . relief to take account of genuine changes in constitutionally significant
conditions.” Id. at 874 (citing Ashcroft v. ACLU, 542 U.S. 656 (2004) (noting the
district court could account for changes in the legal and technological landscape of
the Internet in assessing a First Amendment challenge)). In other words, it is
possible that a government may begin with an impermissible purpose, or create an
unconstitutional effect, but later take affirmative actions to neutralize the
endorsement message so that “adherence to a religion [is not] relevant in any way to
a person’s standing in the political community.” E.g., Lynch v. Donnelly, 465 U.S.
668, 687 (1984) (O’Connor, J., concurring); see also Books v. City of Elkhart, 235
F.3d 292, 304 (7th Cir. 2000) (asking whether “the subsequent history of the [Ten
Commandments] monument can be said to have in any way transformed [its]
religious purpose”).
While recognizing the possibility of curative action, the McCreary Court
dismissed the government’s curative measures there as insufficient to negate the
initial endorsement of religion. 545 U.S. at 873-74. It held that an objective
observer “would probably suspect that the [government was] simply reaching for any
way to keep a religious document on the walls [that are] constitutionally required to
embody religious neutrality.” Id. at 873 The later addition of nonreligious items did
not create “a clear theme that might prevail over evidence of the continuing religious
object,” and accordingly “[n]o reasonable observer could swallow the claim that the
[government] had cast off the objective so unmistakable in the earlier display[].” Id.
at 872. From that case, we understand the inquiry to be whether curative efforts are
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sufficient to overcome an objective observer’s impression that the display,
considered in its full historical context, is a government endorsement of religion.
Moreover, because the “endorsement” test asks whether government conduct has the
“principal or primary” effect of endorsing religion, Green, 568 F.3d at 796-97, the
standard for curative actions should be sufficient not only to persuasively present a
primary nonreligious effect, but also to disassociate the monument from its previous
religious effect. Accordingly, such curative measures should be sufficient to
persuade an objective observer that the government’s “principal or primary” message
is nonreligious.
What would be enough to meet this standard? The case law does not yield a
ready answer. But from the above principles we conclude that a government cure
should be (1) purposeful, (2) public, and (3) at least as persuasive as the initial
endorsement of religion. It should be purposeful enough for an objective observer to
know, unequivocally, that the government does not endorse religion. It should be
public enough so that people need not burrow into a difficult-to-access legislative
record for evidence to assure themselves that the government is not endorsing a
religious view. And it should be persuasive enough to countermand the preexisting
message of religious endorsement.
We cannot speculate what precise actions a government must take. But we are
satisfied here that Bloomfield has not undertaken sufficiently purposeful, public, and
persuasive actions to secularize the Monument’s previous “principal or primary”
religious message. The City has never explicitly said this Monument was not for
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religious purposes, nor that it was exhibited only for its historical significance.9 It
has not explained why the Ten Commandments tablet belongs with the other secular
monuments. It has not signaled that it would reconsider the Monument in the face of
controversy. In fact, it has taken no public, purposeful, and persuasive action to
distance itself from the sponsor and his message other than two ineffective
disclaimers—one small, the other vague. The only meaningful public action
Bloomfield undertook was to add secular monuments around the Ten
Commandments. But McCreary found that to be insufficient, and we agree.
It is true a cluster of other monuments surrounding the Ten Commandments
can dampen the effect of endorsement. See Van Orden, 545 U.S. at 701-02 (Breyer,
J., concurring in the judgment) (finding significant that the Ten Commandments was
surrounded by seventeen secular monuments and twenty-one historical markers,
which suggests the State intended the “nonreligious aspects of the tablets’ message to
predominate”). That makes sense, because when the government integrates the Ten
Commandments into a unified secular display containing other nonreligious objects,
it “changes what viewers may fairly understand to be the purpose of the display[.]”
Lynch, 465 U.S. at 692 (O’Connor, J., concurring) (finding the placement of a crèche
among other secular symbols of Christmas neutralized the religious endorsement
effect). In light of this mitigating effect, as noted earlier, we credit the City’s effort

9

As discussed above, the forum policy and the disclaimer referring to the
lawn’s historical artifacts of law and government do not accomplish this.
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to place the Ten Commandments in the company of other historical artifacts
suggesting a law-and-government theme.
But that is not enough on its own. Cf. Green, 568 F.3d at 788-89 (finding
impermissible religious endorsement even when the Ten Commandments resided on
a lawn with other nonreligious historical monuments, e.g., war memorials); Books v.
City of Elkhart, 235 F.3d 292, 294-96 (7th Cir. 2000) (finding endorsement even
when the Ten Commandments stood on a lawn with two other secular historical
monuments, and over a dissent that specifically argued these other monuments
diluted the religious tablet’s endorsement effect, see id. at 317 (Manion, J.,
dissenting)). And it was especially inadequate here because of the plain religious
motivations apparent from the approval (approved alone), financing (sponsored
entirely by churches), and unveiling (ceremony rife with Christian allusions) of the
Monument. In light of those considerations, and the situational context of the Ten
Commandments on the lawn, the City would have to do more than merely add a few
secular monuments in order to signal to objective observers a “principal or primary”
message of neutrality. Thus the impermissible taint of endorsement remains, and as
we have said, nothing sufficiently purposeful, public, and persuasive was done to
cure it.

CONCLUSION
Because we find an impermissible effect of endorsement that is insufficiently
mitigated by curative efforts, we AFFIRM.
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Figure 11
Figure

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Ten Commandments

Walkway

Municipal Statement

Figure 2
Figure 2

Figure 2

App. 422

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Figure 3
Figure 3