A federal judge in New Mexico has ruled that a Ten Commandments monument on the grounds of the city hall in the town of Bloomfield is an unconstitutional endorsement of religion under the second prong of the Lemon test. You can read the full ruling here.
One of the key questions in the case was whether the grounds of city hall were a “public forum.” If so, then the monument could be construed as private speech on public property rather than government speech. But the court rejected the city’s arguments in this regard, at least partly because the monument, and three others like it, are permanent rather than temporary. The court likewise rejected the importance of a disclaimer placed on the monument because “the decision to place a permanent monument on public property is a ‘dramatic form of adoption,’ which overpowers the effect of a lukewarm disclaimer.”
Likewise, the court ruled that the existence of a written policy declaring the grounds to be a public forum was essentially a ruse to avoid Establishment Clause scrutiny:
Defendant contends that existence of the forum policy is dispositive because it communicates the City’s purpose to “open its property for private parties to express many different historical viewpoints” and the Court must defer to this intent. In so arguing, Defendant ignores Supreme Court precedent clearly indicating that not every government-created forum is spared Establishment Clause review. An individual’s contribution to a government-created forum is private, not government speech only if the forum is open and accessible to all on equal terms.
The circumstances surrounding the conception and eventual erection of the Ten Commandments monument do not satisfy the Supreme Court’s criteria. As an initial matter, Defendant first approved the Ten Commandments monument prior to the adoption of any forum policy. In other words, the Ten Commandments monument was not originally conceived of as a contribution to a public forum. Obviously, this undercuts Defendant’s argument that the monument should be considered private speech. It intimates that the City was more interested in executing Mr. Mauzy’s scheme than in opening the lawn to all-comers, as it claims. A careful review of the totality of the circumstances confirms this impression; notwithstanding Defendant’s representations, the City of Bloomfield has never created the type of open public forum where speech is fully disassociated from the government.
Despite its professed intent to create a designated public forum, the City has not advertised its forum policy or taken any steps to encourage members of the community, other than Mr. Mauzy, to put monuments on the City Hall Lawn. The disclaimer sign that currently stands on the City Hall Lawn announcing the existence of the forum policy was placed there by Mr. Mauzy in 2011, the same day he erected the Ten Commandments monument. This occurred after he left the City Council, and no City funds were used for the purchase or preparation of the sign. Furthermore, prior to the placement of the Ten Commandments monument, there was no public declaration informing the community about the forum policy (aside from the resolution itself). Thus, for almost four years, there was no obvious sign that Defendant had opened the City Hall Lawn as a public forum.
In addition, the City’s forum policy does not afford the community access to the City Hall Lawn for indiscriminate use. Defendant retains discretion to reject monument proposals that are not “historical” and that are aesthetically displeasing. Unlike the governmental entity in Pinette, Defendant has not cleared its property for a broad range of views. Defendant retains ultimate control over the layout and appearance of the City Hall Lawn as well as control over the nature of the discourse occurring on the lawn: only those who want to convey a message relating to the history of the City’s law and government are welcome. Defendant has not transformed the City Hall Lawn into an open public forum; it has merely provided “selective access” to the lawn.
Once it was determined that the monument was government speech rather than private speech, the outcome was obvious.