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The recent decision of Felix v. City of Bloomfield from the 10th Circuit Federal Court ruled that a Ten Commandments monument placed on municipal property violated the Establishment Clause of the First Amendment. The decision carefully examined specific facts and acknowledged that if any one of several facts had been different, the court may have reached the opposite conclusion and validated the monument.

The Ten Commandments monument, erected in 2011 in the City of Bloomfield, N.M., was placed in the lawn of city hall in an area reserved for historical monuments, although it was the only monument actually placed in the area for some time. The court found that the area in which the Ten Commandments monument was placed had only “selective” access to the public, in large part because at no point had the City invited suggestions for monuments or otherwise communicated to the public at large that suggestions for monuments could be submitted.  Instead, a former council member was the sponsor of the Ten Commandments monument, based on his knowledge that the space was available for monuments. The court found that the lawn space was not truly a public forum open for public speech, thus making the monument government speech.

The court then analyzed whether the monument was secular or non-secular in nature and once again relied on specific facts in the case. The court noted that although the monument was purported to be “historical,” the sponsor had made several public comments, including at the dedication of the monument, that were religiously charged. Other factors that indicated to the court that the city’s Ten Commandments monument was more religious instead of historical included: how recently it had been created vs. an older monument that may have increased historical value; the city’s actions in adopting a 10-year lease of the space only after the monument was challenged; and the fact that other monuments were placed in the area after the Ten Commandments monument.

The Felix court concluded its decision by listing a number of facts which, if slightly different, may have yielded a different outcome. One takeaway from the decision is a reminder to municipalities to ensure that they have developed policies, available to the public, regarding what sorts of materials may be displayed in any public areas and ensuring objective criteria exist to review and approve any applications for displays. However, Felix raises another interesting premise: Public comments made in reference to proposed or existing displays on public property may be interpreted to imbue a non-secular purpose. In other words, this same monument may have been determined to be valid if the sponsor had not made so many public comments that invoked a specific religious belief.

Brad Stewart

Author: Brad Stewart