Parker also expressed reservations about his decision, calling the case “a difficult endeavor” and “borderline,” which with “a tweak of the facts ... could [have resulted] in a different conclusion.”
Back in April 2007, Kevin Mauzy, a Bloomfield city councilman, proposed that the council allow citizens to erect such a monument, and the council unanimously agreed. In July of that year the council adopted a policy governing the placement of such monuments on the City Hall’s front lawn. That generated a petition, signed by 47 of the town’s 8,000 inhabitants, complaining that it violated the so-called separation of church and state mandated by the First Amendment, to wit: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Nothing happened for four years.
In June 2011, Mauzy, by then a former councilman, once again requested permission to install the monument. The council, according to Parker’s investigation into the background of the lawsuit, “acknowledged” his request, whereupon Mauzy, using money raised from several local churches, placed the monument.
This upset a couple of local witches who, with the help of the American Civil Liberties Union (ACLU), brought suit against the city in 2012. Parker ruled that the two witches had standing to sue as they came into “direct, regular and unwelcome contact” with the monument during the week.
In his 32-page opinion, Parker discarded every argument supporting the council’s decision, ruling that allowing Mauzy to build his monument reflected the council’s religious convictions and was therefore unconstitutional. “Because the City Hall embodies the fulfillment of Mr. Mauzy’s plan, the City, has, in effect, created not a public forum for all citizens, but a platform for Mr. Mauzy alone,” the judge declared, adding,
Under the facts of this case, the Court is more than comfortable saying that Defendant [the city council] is sufficiently connected with the Ten Commandments monument that it must be analyzed as government speech subject to the strictures of the Establishment Clause.
Parker noted in passing that without the Fourteenth Amendment, he would never have seen this lawsuit. The First Amendment, originally intended to apply its “strictures” exclusively to the national government, now “applies to the States and their political subdivisions” as well, according to Parker.
In his opinion, Parker noted the Pandora’s Box that such application has opened, so that even the Supreme Court has “struggled mightily” to formulate clear guidelines about which actions “are and are not permissible” under that clause. Consequently, "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."
Click here to read the entire article.
Photo of Ten Commandments monument at City Hall in Bloomfield, New Mexico: AP Images