Written by Don Byrd

A coalition of Attorneys General in 22 states have filed a brief urging the U. S. Supreme Court to take up the case of City of Bloomfield v. Felix, a dispute over the constitutionality of a Ten Commandments monument displayed on the lawn of City Hall in Bloomfield, New Mexico. The brief claims the law regarding government monuments to religion has created “confusion in lower courts about what the Establishment Clause prohibits and what it permits.”

The states go further, however, than merely asking the Court to clarify its doctrine in the context of religious monuments like the Ten Commandments on government property. They also want the case to become the vehicle for a broader revamping of Establishment Clause jurisprudence, including overturning the longstanding Lemon Test and the “reasonable observer” standard courts typically use to determine whether government action violates the constitutional separation of church and state.

Here is an excerpt from the brief:

[A]ny Establishment Clause test the Court adopts should not depend on the views of a so-called “reasonable observer.” It should instead recognize the historical significance of religious references and imagery in American government.

A coercion-based analysis would both respect the structure of the First Amendment’s two religion clauses and implement the text of the Establishment Clause consistent with its purpose and history. As the Court has explained, “government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’” And because the type of coercion-based test that several Justices have proposed would also be substantially clearer and more workable than other suggested alternatives, it is all the more attractive in this uncertain area of the law. 

Needless to say, overturning Lemon and replacing the reasonable observer standard with a coercion test would significantly uproot church-state law, and substantially weaken current religious liberty protections buttressing the institutional wall of separation between church and state.

The 10th Circuit Court of Appeals last year ruled the monument in question unconstitutional. Even if the Supreme Court were to decide that case was wrongly decided, or to clarify its Ten Commandments cases, that can surely be accomplished without re-writing church-state doctrine, as the states here would have the Supreme Court do.

The Bloomfield petition has not yet been scheduled for conference by the Supreme Court. Stay tuned.