This article was first published by The McAlvany Intelligence Advisor on Monday, August 11, 2014:
Judge James A. Parker of the District Court of New Mexico ruled against the tiny town of Bloomfield, New Mexico, last week, giving the city until September 20th to remove a five-foot-high, 3,000-pound monument celebrating the 10 Commandments from in front of its city hall.
The judge admitted that, thanks to incorporation and the resulting judicial confusion emanating from rulings that the Fourteenth Amendment applies the Bill of Rights to the states as well as to the federal government, he was on his own:
In performing the role of this [disinterested] observer, the Court is thrust into a realm of pretend and make-believe, guided only by confusing jurisprudence and its own imagination.
Even though the Fourteenth Amendment was passed following the Civil War, it was never considered to force the Bill of Rights – designed to limit actions of the national government the states created back in 1787 – onto the states. However, beginning in the 1920s an increasing number of court decisions have now forced the Bill of Rights onto the states, with consequences still being felt today.
The lawsuit that entered Parker’s courtroom back in March should never have been heard. Kevin Mauzy, a city councilman in Bloomfield, in 2007 requested that citizens be allowed to place monuments on the front lawn of the city hall as part of a beautification project. The council was unanimous in passing the resolution. In July of that year the council adopted a policy governing the placement of such monuments. When word got out that Mauzy wanted to put up the 10 Commandments, 47 inhabitants of the town of 8,000 signed a petition protesting the policy, claiming that it violated the Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”.
For the next four years nothing happened.
In 2011, Mauzy, now a former city councilman, asked the council for permission to build the monument. He had been busy raising money from local churches, and was ready to go. The council, according to Parker in his 32-page opinion, “acknowledged” his request, and the monument was installed on July 4th. Mauzy and some church officials celebrated the event, with Mauzy exercising his own First Amendment rights of free speech:
Some would believe that this monument is a new thing. They have been so busy trying to remove God from every aspect of our lives that they have overlooked our history.
Well, I’ve got news for you, it’s been here all along….
You and I are average citizens who believe just like most of our fellow Americans. We want the government to leave us alone and to keep … their hands off our money, our religion, our Ten Commandments, our guns, our private property and our lives….
Little did he know, or could even imagine, that those words would come back to haunt him as part of the reason Parker decided the First Amendment didn’t apply to his monument.
Two Wiccans – that pagan religion that worships two gods instead of One (a “mother goddess” and a “horned god”) – who belonged to the Bloomfield Order of the Cauldron of the Sage, got their cauldron in a boil and enlisted the help of the ACLU by filing a lawsuit, claiming that they were being discriminated against, that they were made to feel like “second-class” citizens. They were affronted by the monument, on a regular basis, too. Each of them had to work or drive by it on their way to work or to the library.
This was enough for Parker to grant them “standing to sue”, concluding that they each came into “direct, regular and unwelcome contact” with the offending monument during the week.
Parker began to look around for help in understanding existing jurisprudence over the matter. The more he looked the more helpless he became. He looked at (and wrote about) two recent Supreme Court cases that appeared to face identically the same issue: Van Orden v. Perry and McCreary County v. America Civil Liberties Union. The first was a Texas case while the second was Kentucky case. They were both heard on the same day: March 2, 2005. And they were both decided on the same day: June 27, 2005. The Supremes ruled that the monument celebrating the 10 Commandments in Texas was constitutional, while they ruled that the 10 Commandments monument in Kentucky was unconstitutional. Each was decided 5-4. In each case Justice Stephen Breyer was the swing vote.
Breyer wrote a concurring opinion in Van Orden, explaining the pickle the court was in as a result of “incorporation” which forced the court to make a decision in a case that had no business being heard in the first place. He wrote:
The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments’ text undeniably as a religious message, invoking, indeed emphasizing, the Deity.
On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case … we must determine how the text is used … [and] to consider the context of the display.
In other words: flip a coin. It’s all up to the justices to “consider the context” of the display to determine its constitutionality.
Parker decided not to enter the swamp of Van Orden or McCreary but instead focused on a more recent decision that was closer to home: Green v. Haskell County Board of Commissioners. It was decided in 2009 by the 10th Circuit Court which is where he knew his decision would likely wind up on appeal, and that decision guided his. In Green, the court ruled that a similar 10 Commandments monument in Oklahoma was unconstitutional, forcing the city to move it to the lawn of the American Legion, right next door to the courthouse.
But it was close, wrote Parker. It could have gone either way. If the “facts” of the case had just been slightly different, so would his decision:
For example, had the Ten Commandments monument been established last in the series of monuments, after the placement of the Declaration of Independence, the Gettysburg Address and the Bill of Rights monuments, the First Amendment may not have been offended.
Had the Ten Commandments monument been arranged at the rear of the north lawn near the municipal building complex, with the other three monuments … in front of it, the Ten Commandments monument may have passed muster.
Had the Ten Commandments monument been installed in a dedication event or with a ceremony absent religious overtones, the ultimate conclusion may have differed.
Had the City of Bloomfield adopted the amended policy permitting monuments first, with language clearly allowing only temporary resident of a monument, the result might have changed.
What he failed to mention, of course, is that had the Fourteenth Amendment never been applied to the states, this case would never have entered his courtroom.
The city has 30 days to decide whether or not to appeal to the 10th Circuit Court.
Judge Parker’s MEMORANDUM OPINION AND ORDER