                                                                                     FILED
                                                                         United States Court of Appeals
                                         PUBLISH                                 Tenth Circuit

                          UNITED STATES COURT OF APPEALS                       February 6, 2017

                                                                             Elisabeth A. Shumaker
                                 FOR THE TENTH CIRCUIT                           Clerk of Court
                             _________________________________

JANE FELIX; B.N. COONE,

       Plaintiffs - Appellees,

v.                                                            No. 14-2149
                                                  (D.C. No. 1:12-CV-00125-JAP-RHS)
CITY OF BLOOMFIELD,                                            (D. N.M.)

       Defendant - Appellant.

------------------------------

LIBERTY COUNSEL,

       Amicus Curiae.
                             _________________________________

                                          ORDER
                             _________________________________

Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HOLMES,
MATHESON, BACHARACH, PHILLIPS, McHUGH, and MORITZ, Circuit
Judges.*
                 _________________________________

        This matter is before the court on the appellant’s Petition for Rehearing En Banc.

We also have a response from the appellees. Both the petition and response were

circulated to all the active judges of the court who are not disqualified. See Fed. R. App.

P. 35(a).

        *
         The Honorable Harris L Hartz is recused and did not participate in consideration
of this petition. The Honorable Neil M. Gorsuch considered the petition and response
upon circulation, but did not participate in the final issuance of this order.
       Upon consideration, a poll was called, and a majority voted to deny the request for

en banc rehearing. Accordingly, the petition is denied.

       Chief Judge Tymkovich and Judge Kelly voted to grant en banc rehearing and

Judge Kelly has written separately in dissent. Chief Judge Tymkovich joins that dissent.


                                             Entered for the Court



                                             ELISABETH A. SHUMAKER, Clerk




                                            2
No. 14-2149, Felix v. City of Bloomfield.

KELLY, Circuit Judge, dissenting from the denial of rehearing en banc, joined by
TYMKOVICH, Chief Circuit Judge.

       This decision continues the error of our Establishment Clause cases. It does not

align with the historical understanding of an “establishment of religion” and thus with

what the First Amendment actually prohibits. It also applies the wrong test, despite

guidance by the Supreme Court that the Lemon / endorsement test is “not useful in

dealing with [a] passive monument” such as the one at issue here. Van Orden v. Perry,

545 U.S. 677, 686 (2005) (plurality opinion); see also id. at 700 (Breyer, J., concurring).

A.     Defining Establishment

       1.       Establishment in Europe, the American Colonies, and Post-Revolution
                America

       The First Amendment provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I.

To make sense of the Establishment Clause, one must understand the historical

background that informed the Framers’ use of the word “establishment.” In Europe, the

continent of origin for most American colonists, each country had long established its

own state church — a generalized version of cuius regio, eius religio1 — over which each

government exercised varying degrees of control. Germany and Scandinavia had official

Lutheran establishments; Holland, a Reformed state church; France, the Gallican Catholic

Church; Ireland, the Church of Ireland; Scotland, the Church of Scotland; and so on.



       1
            “Whose realm, his religion.”
Broadly speaking, during and after the Reformation, “all the territorial national churches,

Anglican as well as Lutheran, Catholic as well as Orthodox, fell under the caesaropapist

control of the absolutist state.” José Casanova, Public Religions in the Modern World 22

(1994).

       In England, the church-state arrangement took the form of Erastianism, named for

the 16th-century theologian Thomas Erastus who advanced a theory of civil authority

over the power of the Church. Under Erastianism, “the monarch was the supreme head of

the Church; Parliament controlled the liturgy and articles of faith; the government

appointed the bishops; [and] government offices were confined to members of the

Church.” Michael W. McConnell, Establishment and Disestablishment at the Founding,

Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2189 (2003).

Establishment was a one-way street: the government controlled the Church, not the other

way around. As for the religious liberty of dissenters, though the Toleration Act of 1688

removed some of the criminal penalties against trinitarian nonconformists such as

Baptists and Congregationalists, it left in place the favored position of the Church of

England, as well as criminal penalties against Catholic, Jewish, and Unitarian dissenters.

See id. at 2114; see also Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1421–22 (1990).

This arrangement prevailed in England for most of the 18th century.

       Establishment was also the norm in the American Colonies. Exclusive Anglican

establishments reigned in the southern states, whereas localized Puritan establishments

                                             -2-
were the norm in New England, with the exception of Rhode Island. See McConnell,

Establishment, supra, at 2115. Although the particularities of each establishment differed

from colony to colony (even within these two broad categories), there were certain

commonalities that existed across the board. Professor McConnell has summarized the

general features of most establishments: “(1) [state] control over doctrine, governance,

and personnel of the church; (2) compulsory church attendance; (3) financial support; (4)

prohibitions on worship in dissenting churches; (5) use of church institutions for public

functions; and (6) restriction of political participation to members of the established

church.” Id. at 2131. Very generally, the existence of these elements provides a good

starting point in understanding the public meaning of “establishment” in pre-Revolution

America.

       After the Revolution, some things changed. The Church of England was

disestablished, if only because Americans could not have as head of their church the King

of England from whom they had just gained independence. See Michael W. McConnell,

Religion and Its Relation to Limited Government, 33 Harv. J.L. & Pub. Pol’y 943, 946

(2010). And shortly after the end of the war, Virginia enacted its Bill for Establishing

Religious Freedom, completely disestablishing its church. McConnell, Establishment,

supra, at 2120. The majority of other states, however, continued their practices of

establishment. Vermont, Connecticut, New Hampshire, and Massachusetts required

citizens to pay taxes to support a (Protestant) church or religious institution, but provided

some freedom as to how citizens could direct those funds. Id. at 2157–59. (These

                                             -3-
establishments all survived the passing of the Constitution and the Bill of Rights, with

disestablishment coming to Vermont in 1807, Connecticut in 1818, New Hampshire in

1819, and Massachusetts in 1833. See id. at 2126, 2157–59.) Maryland, South Carolina,

and Georgia had more general establishments embedded in their state constitutions. See

Akhil Reed Amar, Some Notes on the Establishment Clause, 2 Roger Williams U. L.

Rev. 1, 2 (1996). Even states without official churches aided and promoted religion, and

most had religious qualifications for holding office. Id.

       In the 1780s, those who encouraged governmental aid of religion generally offered

republican, not necessarily theological, reasons for their support. For example, the

Massachusetts Constitution of 1780 premised that “the happiness of a people and the

good order and preservation of civil government essentially depend upon piety, religion,

and morality,” and therefore established “the institution of the public worship of God and

of public instructions in piety, religion, and morality.” Mass. Const. of 1780, art. III.

Opponents and religious dissenters, on the other hand, were concerned that an official

establishment, even if good for civic virtue, would come at the cost of free exercise and

true religion. In other words, they feared the one-way governmental control over the

church reminiscent of the Erastianism they had left in England. See, e.g., Steven D.

Smith, The Establishment Clause and the “Problem of the Church,” in Challenges to

Religious Liberty in the Twenty-First Century 3, 8 (Gerard V. Bradley ed., 2012)

[hereinafter Smith, Establishment Clause] (“[A]t least with respect to the national

government, [early Americans] renounced the Erastian claim, thereby disclaiming power

                                             -4-
over the church . . . .”).

       2.      Crafting the First Amendment

       When the First Congress met in 1789 to craft a Bill of Rights, it is safe to say that

the relationship between church and state was far from settled. Some states continued

their established churches and other mechanisms of state support; others were headed in

the opposite direction. This contrast in opinion was reflected in the differing statements

that came out of the states’ ratifying conventions that formed the initial proposals for the

Bill of Rights. See generally Steven D. Smith, The Jurisdictional Establishment Clause:

A Reappraisal, 81 Notre Dame L. Rev. 1843, 1845–58 (2006). Virginia and New York

submitted similar “no preference” proposals that said, in the words of the New York

Declaration, “That the People have an equal, natural and unalienable right, freely and

peaceably to Exercise their Religion according to the dictates of Conscience, and that no

Religious Sect or Society ought to be favoured or established by Law in preference of

others.” Ratification of the Constitution by the State of New York, July 26, 1788,

reprinted in Yale Law School Avalon Project,

http://avalon.law.yale.edu/18th_century/ratny.asp. In contrast, New Hampshire offered a

more jurisdictional suggestion: “Congress shall make no Laws touching religion, or to

infringe the rights of Conscience.” Ratification of the Constitution by the State of New

Hampshire, June 21, 1788, reprinted in Yale Law School Avalon Project,

http://avalon.law.yale.edu/18th_century/ratnh.asp.

       That the First Congress eventually settled on other language — “Congress shall

                                             -5-
make no law respecting an establishment of religion, or prohibiting the free exercise

thereof” — has been the source of much academic and judicial debate. E.g., Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45 (2004) (Thomas, J., concurring) (advancing

federalism argument); Lee v. Weisman, 505 U.S. 577, 612–16 (1992) (Souter, J.,

concurring) (advancing “strict-separationist” theory); Wallace v. Jaffree, 472 U.S. 38, 113

(1985) (Rehnquist, J., dissenting) (advancing “non-preferentialist” interpretation). From

the words of the text, though, two conclusions are relatively clear: first, the provision

originally limited the federal government and not the states, many of which continued to

support established churches; and second, the limitation respected only an actual

“establishment of religion.” As Justice Story reported, “[t]he real object of the [First]

Amendment was . . . to prevent any national ecclesiastical establishment, which should

give to an hierarchy the exclusive patronage of the national government.” 3 Joseph Story,

Commentaries on the Constitution of the United States 728 (1833), quoted in Lynch v.

Donnelly, 465 U.S. 668, 678 (1984); see also McConnell, Establishment, supra, at 2109

(“Contrary to popular myth, the First Amendment did not disestablish anything. It

prevented the newly formed federal government from establishing religion or from

interfering in the religious establishments of the states.”).

       In this way, both the pro-establishment and the anti-establishment camps got more

or less what they wanted. Because the national government was prohibited from

establishing a religion, Massachusetts, for instance, was free to continue its religious

sponsorship, while Virginia could more fully disestablish. Both objectives comport with

                                              -6-
the common understanding of what “establishment” meant at the time: state control over

the Church, not the other way around. Hence Jefferson’s “wall of separation between

church and state,” which made the distinction between church and state, not between all

religion and government. Smith, Establishment Clause, supra, at 3. As Steven D. Smith

nicely summarizes, Jefferson’s “language hardly suggests a demand for a thoroughly

secular government. But it is nicely congruent with the interpretation of the

establishment clause as a disclaimer of Erastian power over the church.” Id. at 16.2

       This distinction between religion generally and the church specifically also makes

sense in light of the historical practices of the First Congress. On the same day the House

of Representatives voted to “make no law respecting an establishment of religion,” it then

proposed a resolution requesting President George Washington to set aside a “day of

public humiliation and prayer” in his Thanksgiving Day Proclamation. See J. Clifford

Wallace, The Framers’ Establishment Clause: How High the Wall?, 2001 BYU L. Rev.

       2
          Admittedly, this interpretation glosses over many of the complexities of
Jefferson’s letter to the Danbury Baptist Association, from which the famous line comes.
See Letter from Thomas Jefferson to the Danbury Baptist Association (Jan. 1, 1802), in
36 The Papers of Thomas Jefferson 258 (Barbara B. Oberg ed., 2009), available at
https://jeffersonpapers.princeton.edu/selected-documents/danbury-baptist-association-0.
The explanation is likely consistent, however, with the general understanding of
establishment when the First Amendment was crafted in 1789, even if it does not fully
capture the political meaning of the letter at the time it was written — in 1802. See, e.g.,
Philip Hamburger, Separation of Church and State 109–29 (2002) (explaining how the
idea of strict separation was introduced in the tumultuous election of 1800 as a way for
Jeffersonian-Republicans “simultaneously to attract antiestablishment votes and to
browbeat Federalist clergy for preaching about politics,” id. at 111); cf. Daniel L.
Dreisbach & John D. Whaley, What the Wall Separates: A Debate on Thomas Jefferson’s
“Wall of Separation” Metaphor, 16 Const. Comment. 627 (1999) (debating the meaning
of Jefferson’s letter and its relation to the Establishment Clause).

                                            -7-
755, 764–65 (2001). One member from South Carolina objected, arguing that the

legislation “is a religious matter, and, as such, is proscribed by us,” id. at 764 (quoting

statement of Thomas Tudor Tucker), but the resolution still carried a great majority.

Indeed, “[o]ur history is replete with official references to the value and invocation of

Divine guidance” in official proceedings. Lynch, 465 U.S. at 676–77; see also Van

Orden, 545 U.S. at 686–90 (listing instances of official recognition of the role of religion

in the nation’s life); McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 886–89, 906–07

(2005) (Scalia, J., dissenting) (same).

B.     Limiting Lemon

       This examination of the historical understanding of the First Amendment aligns

with current Supreme Court practice. In Town of Greece v. Galloway, for instance, the

Court reversed the Second Circuit’s use of the endorsement test in a public prayer case,

underscoring instead that “the Establishment Clause must be interpreted ‘by reference to

historical practices and understandings.’” 134 S. Ct. 1811, 1819 (2014) (citations

omitted). This was not because the Court sought to “permit[] a practice that would

amount to a constitutional violation if not for its historical foundation,” id., but rather

because the Court understood that historical practices of the First Congress that

constituted “a benign acknowledgment of religion’s role in society” informed the inquiry

about the contours of the Establishment Clause. Id.

       Nor is this turn to history unique to legislative-prayer cases such as Town of

Greece or Marsh v. Chambers, 463 U.S. 783 (1983). Although the Court used the Lemon

                                              -8-
test in McCreary County, 545 U.S. at 859–60, it then specifically avoided Lemon’s

application in the contemporaneous case of Van Orden, there explaining that its analysis

of Texas’s decalogue display was “driven both by the nature of the monument and by our

Nation’s history.” 545 U.S. at 686 (plurality opinion); see also id. at 699–700 (Breyer, J.,

concurring). Other circuits have rightly interpreted this to mean that Van Orden

announced a deviation from Lemon’s applicability for certain displays. See Card v. City

of Everett, 520 F.3d 1009, 1018 (9th Cir. 2008) (applying Justice Breyer’s controlling

concurrence in Van Orden, which “carv[ed] out an exception” from Lemon); ACLU Neb.

Found. v. City of Plattsmouth, 419 F.3d 772, 778 n.8 (8th Cir. 2005) (en banc) (“Taking

our cue from Chief Justice Rehnquist’s opinion for the Court and Justice Breyer’s

concurring opinion in Van Orden, we do not apply the Lemon test.”). As the Ninth

Circuit has observed, it probably is unnecessary to define the outer limits of this

exception, but it “at least includes the display of the Ten Commandments at issue here.”

Card, 520 F.3d at 1018.3

       3
          In Card, the Ninth Circuit found that its case fit within the Van Orden orbit
rather than McCreary County’s. In doing so, the court emphasized that it was the
“[c]ity’s intent [that] is the key,” not simply that of the private donor; rejected the
argument that the presence of clergy at the dedication ceremony doomed the display,
since the religious ceremony was not the city’s doing; noted that the monument bore an
inscription saying that it was donated by a private organization; and described the
monument’s setting as part of a collection of three war monoliths and one plaque. 520
F.3d at 1019–21. With the exception of one other factor — the length of time between
the monument’s installation and a legal challenge — that case could be ours.

      This is in contrast to the facts of McCreary County, where the decalogue displays
were created by the counties, not by private organizations (or, as here, a formerly-public
but now private citizen); where the displays were housed in the courthouse, not in a

                                             -9-
       Such a change is especially warranted in our circuit, where we combine Lemon

with an endorsement spin that is tantamount to a hostile “reasonable observer.” Though

we state that there is no presumption of invalidity for religious displays, see Green v.

Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 798–99 (10th Cir. 2009), and that any “taint”

of religion can be “cured,” Felix v. City of Bloomfield, 841 F.3d 848, 862–63 (10th Cir.

2016), that may be in theory only. A truly reasonable observer could be forgiven for

wondering whether there exists a gap between the test we purport to apply and a more

stringent one we secretly require. For instance, the panel opinion emphasizes that a city

must make “sufficiently purposeful, public, and persuasive actions” to overcome any

religious message, id. at 864, and then provides examples of such remediation:

accompanying the monument with other secular markers, id., avoiding religious

ceremonies when unveiling the monument, id. at 858–59, and displaying clear

disclaimers, id. at 860–61.4


public park or lawn; where the dedication ceremony was religious in nature and presided
over by a county judge-executive, not by private citizens; where the Ten Commandments
were first set alone, and then — after the counties had been sued — accompanied by eight
other documents, “each either having a religious theme or excerpted to highlight a
religious element,” and only later by certain other historical documents; and so on. See
545 U.S. at 851–58. Suffice it to say, these facts are not our facts.
       4
         Other suggestions for overcoming our non-presumption may include: (1) making
a public legislative pronouncement about the secular purpose of the monument; (2) using
disclaimers that avoid the possibility that the city “might” support the monument’s
message; (3) offering a substantive public explanation about how the Ten
Commandments fit into the city’s history; and (4) ensuring that the Ten Commandments
never stand alone, but only come into being already surrounded by secular displays. Of
course, such steps seem more in line with remedying an ongoing constitutional violation
than making the call in the first instance.

                                            -10-
       Yet the City of Bloomfield did each of those things. It accompanied the

monument with secular markers such as the Declaration of Independence, the Bill of

Rights, and the Gettysburg Address. Id. at 862. It avoided a government-sponsored or

government-led religious ceremony at the unveiling, instead allowing private persons to

run the event. Id. at 853. And it provided not one but two disclaimers, one on the

monument itself and one on a freestanding sign on the City Hall lawn. Id. at 852–53.

What more should the City have done, besides not having a Ten Commandments display

at all? At a minimum, there seems to be a difference between the language we use to

discuss how a city can “cure” the “taint” and the factual second-guessing we undertake in

determining that no attempted cure we have seen has been effective. Cf. Green v. Haskell

Cty. Bd. of Comm’rs, 574 F.3d 1235, 1243–49 (10th Cir. 2009) (Gorsuch, J., dissenting

from denial of rehearing en banc) (outlining the many mistakes of our “reasonable

observer”). Though this court may view the placement of the Ten Commandments as

unwise, unnecessary, or even aesthetically displeasing, cf. id. at 1237–38 (Kelly, J.,

dissenting from denial of rehearing en banc), we should defer to local government

decisions absent an actual violation of the First Amendment.

C.     Moving Forward

       It is time we reexamine our Establishment Clause cases. The Supreme Court has

“often noted that actions taken by the First Congress are presumptively consistent with

the Bill of Rights.” Town of Greece, 134 S. Ct. at 1834 (Alito, J., concurring). Those

actions often took the form of supporting religion generally but never establishing an

                                            -11-
official religion or church. Accordingly, this distinction should inform our understanding

of what the First Amendment allows, and what it does not.

       As applied to modern cases, these historical measures demonstrate that the

Establishment Clause should not be an impediment to certain, limited government

displays of a religious nature.5 This is especially true when, as in the case of national

days of prayer or with public monuments of a religious nature, the governmental action

helps to promote, instead of inhibit, citizens’ free exercise of religion.

       More particularly, the public display of memorials with historical significance

should generally not be construed as an “establishment of religion,” even if one of the

monuments also happens to be religious in nature. Here, the City of Bloomfield was not

exercising control over the doctrine, governance, or personnel of a church; it was not

compelling church attendance; it was not financially supporting a church or particular

denomination; it was not inhibiting worship in any way; it was not using a church

institution for public goals; and it was not restricting political participation to members of

an established church. In short, the City’s behavior met none of the traditional elements

       5
          Again, “[o]n modern interpretations that have seen the establishment clause as
separating government from religion, these actions [by the First Congress endorsing
religion] seemed suspect at best. It looks as if Congress was committing the national
government to keep out of religion while at the same time blatantly and brazenly violating
that commitment. But although decades later Madison expressed doubts, at the time there
seems to have been no sense that Congress was acting contrary to principles it was
simultaneously drafting and enacting. . . . [T]hat attitude seems perfectly appropriate.
The establishment clause was about keeping the national government from exercising
power over churches. Legislative prayer and a national day of thanksgiving are clearly
religious expressions or gestures, but these actions do not seem to entail any sort of
interference with churches.” Smith, Establishment Clause, supra, at 14.

                                             -12-
of what the original public meaning of “establishment” likely meant. Cf. McConnell,

Establishment, supra, at 2131.

       Though the Ten Commandments are of course religious — “they were so viewed

at their inception and so remain” — “[s]imply having religious content or promoting a

message consistent with a religious doctrine does not run afoul of the Establishment

Clause.” Van Orden, 545 U.S. at 690. This should be especially true in cases such as this

one, when the religious message is non-sectarian, being generally accepted by Judaism,

Christianity, and Islam alike. See McCreary Cty., 545 U.S. at 909 (Scalia, J., dissenting).

                                           ***

       Our cases should further the meaning of the Establishment Clause as it was

understood by the Framers. This case presented a good opportunity to take another look

at the map and reverse course. Though returning to a more historically-congruent

understanding of the Establishment Clause is the ultimate province of the Supreme Court,

there is much we could have done to correct our law in this area while still operating

within the proper boundaries of an inferior court. Accordingly, I respectfully dissent

from the denial of rehearing en banc.




                                           -13-
