JANE FELIX; B.N. COONE, Plaintiffs - Appellees,
CITY OF BLOOMFIELD, Defendant-Appellant. LIBERTY COUNSEL, Amicus Curiae.
No. 1:12-CV-00125-JAP-RHS (D. N.M.)
TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HOLMES,
MATHESON, BACHARACH, PHILLIPS, McHUGH, and MORITZ, Circuit
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).
consideration, a poll was called, and a majority voted to
deny the request for en banc rehearing. Accordingly, the
petition is denied.
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.
Circuit Judge, dissenting from the denial of rehearing en
banc, joined by TYMKOVICH, Chief Circuit Judge.
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).
Establishment in Europe, the American Colonies, and
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 - 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).
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.
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.
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.
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 ...