Court denies rehearing of Ten Commandments case

Bloomfield must decide whether to appeal to the U.S. Supreme Court or remove the Ten Commandments monument

Hannah Grover

FARMINGTON — The U.S. Court of Appeals for the 10th Circuit in Denver has denied a petition from the city of Bloomfield asking that the full court hear an appeal of a lower court ruling that requires the removal of a Ten Commandments monument on the lawn outside the town's City Hall.

A three-judge panel from the appeals court previously left in place the lower court ruling that the monument must be removed. Of the 10 judges weighing in on the ruling that was issued Monday, Chief Judge Timothy Tymkovich and Judge Paul Kelly cast dissenting votes. Judge Neil Gorsuch, President Donald Trump's nominee to fill a U.S. Supreme Court vacancy, is on the court but "did not participate in the final issuance of the order," according to court documents.

The case stems from a lawsuit filed in 2012 by the Americans Civil Liberties Union on behalf of two Bloomfield residents who objected to the monument. In 2014, a federal judge ruled that the monument was government speech endorsing a religion. The judge ordered Bloomfield to remove the stone monument. The city appealed the case and, in November, the court of appeals panel upheld the district court ruling.

City Manager Eric Strahl said the City Council likely will meet in executive session next week to decide the next step, which would be either removal of the monument or an appeal of the decision to the U.S. Supreme Court.

The city of Bloomfield is being represented by the Alliance Defending Freedom, a nonprofit legal organization based in Scottsdale, Ariz. The Alliance Defending Freedom is not charging Bloomfield for the legal service.

Jonathan Scruggs, an attorney with the alliance, said the city will have to decide whether to persevere, but he added that having two dissenting judges will help Bloomfield's case if it decides to continue.

"I think this is an issue that is prime for the Supreme Court to take," he said.

Andrew Schultz, an attorney with the Rodey Law Firm in Albuquerque, represented the ACLU in the lawsuit. He said he was not surprised by the decision not to grant the petition.

"We have felt very strongly all along that the Ten Commandments monument is unconstitutional," he said.

He said every judge who has heard the case has agreed that the city has not made enough effort to distance itself so that a reasonable observer would not view the monument as government speech. If the monument is government speech, it would be seen as endorsing one particular religion and, initially, it stood alone in front of City Hall.

"In 2011, there was not a single monument on that lawn," Schultz said.

The stone monument has now been joined by several other monuments that deal with such subjects as the Bill of Rights, the Gettysburg Address and the U.S. Constitution.

Those monuments were cited in the dissenting argument, along with disclaimers that are posted on the Ten Commandments monument and on the lawn explaining that the monument was placed in the spirit of creating a public forum where "local citizens can display monuments that reflect the city's history of law and government." The disclaimers further state that any messages included on the monuments are statements from private citizens and do not necessarily reflect the opinions of the city.

"What more should the City have done, besides not having a Ten Commandments display at all?" Kelly wrote in the dissent.

Scruggs said the major point the Alliance Defending Freedom has tried to emphasize throughout the case is "all the city is trying to do is honor its history and heritage."

Hannah Grover covers government for The Daily Times. She can be reached at 505-564-4652.