By Joshua Vogel
The Establishment Clause was once again tested in the context of the display of a religious symbol in federal court. In Weinbaum v. City of Las Cruces, Paul Weinbaum and Martin Boyd, both citizens of the City of Las Cruces (“the City”), alleged violations of their Constitutional rights under the Establishment Clause because the City displays an image of three crosses on city vehicles, in the public school, and on other city-owned property.
Plaintiffs allege that the display of the City seal containing the image of three crosses is an endorsement of Christianity and therefore illegal under the Establishment Clause. The Tenth Circuit upheld the trial court’s holding that the display of crosses was not a violation of the Establishment Clause. The Tenth Circuit used Justice O’Connor’s endorsement test and reasoned that because an objective observer who knows the history and context of the City’s name and foundation – the English equivalent of the city’s name is “the crosses” and the city was named, in part, because of a field of graves marked by crosses or for its function as a crossroads – would not believe that the purpose or the effect of the display was to endorse Christianity, no violation existed.
The Tenth Circuit stated that it was bound by the Lemon test, because it has yet to be overturned, but applied what it called a hybrid of the Lemon test and O’Connor’s endorsement test, which was essentially a strict application of O’Connor’s endorsement test. O’Connor’s endorsement test focuses on whether an objective person, with full knowledge of the history and context of a religious display, would believe that the governmental entity is in fact endorsing a religion, or that the government action has the effect of endorsing a religion.
In order to determine if the governmental entity is endorsing a religion, the Tenth Circuit first looked at whether an objective observer would believe that the intent of the City was to endorse Christianity. The Tenth Circuit found that as long as the government’s secular justification for the display is not a “sham” or “secondary” to a religious purpose, it will defer to that professed purpose. In addition, it held that it would not attribute unconstitutional motives to the government, especially where the court can discern a “plausible secular purpose.” The court held that the identification of government property is a plausible secular purpose in this case.
Second, the Tenth Circuit determined whether an objective observer would believe that the effect of the City seal was an endorsement of Christianity. Once again, the court determined that an objector observer is one who takes account of the context and history of the display. The court found that the use of crosses in the city symbol is intuitive given the history of the City being named after a group of crosses; the unique history works against the argument that the effect of the display is an endorsement of Christianity. Given this unique history, an objective observer who is aware of that history would not believe that the effect of the display of crosses is an endorsement of Christianity.
Plaintiffs now have the opportunity to appeal the Tenth Circuit’s decision to the United States Supreme Court. The Establishment Clause is currently a hot topic given the Court’s upcoming decision in the case involving the display of a cross honoring veterans in the Mojave Desert Preserve, which is owned by the federal government.