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Felix v. City of Bloomfield

United States Court of Appeals, Tenth Circuit

February 6, 2017

JANE FELIX; B.N. COONE, Plaintiffs - Appellees,
v.
CITY OF BLOOMFIELD, Defendant-Appellant. LIBERTY COUNSEL, Amicus Curiae.

         D.C. No. 1:12-CV-00125-JAP-RHS (D. N.M.)

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

          ORDER

         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).

         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.

          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 religio[1] - 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. 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 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 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 ...


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