Weinbaum v. City of Las Cruces, N.M., No. 06-2355.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Ebel
• Citation: 541 F.3d 1017
• Parties: Paul F. WEINBAUM; Martin J. Boyd, Plaintiffs-Appellants, v. The CITY OF LAS CRUCES, NEW MEXICO; William Mattiace, individually, and in his official capacity as Mayor of the City of Las Cruces; Dolores Archuleta, individually, and in her capacity as a member of the City Council of the City of Las Cruces; Dolores Connor, individually, and in her capacity as a member of the City Council of the City of Las Cruces; Jose Frietze, individually, and in his capacity as a member of the City Council of the City of Las Cruces; Kenneth Miyagashima, individually, and in his capacity as a member of the City Council of the City of Las Cruces; Wesley Strain, individually, and in his capacity as a member of the City Council of the City of Las Cruces; Steve Trowbridge, individually, and in his capacity as a member of the City Council of the City of Las Cruces, Defendants-Appellees. Foundation for Moral Law; National Legal Foundation, Amici Curiae. Paul F. Weinbaum, Plaintiff-Appellant, v. Las Cruces Public Schools; Charles Davis; Leonel Briseno, Gene Gant, John Schwebke, and Sharon Wooden, as School Board Members of Las Cruces Public Schools, Defendants-Appellees.
• Docket Number: No. 07-2012.,No. 06-2355.
• Decision Date: 12 September 2008

541 F.3d 1017 Paul F. WEINBAUM; Martin J. Boyd, Plaintiffs-Appellants,
v.
The CITY OF LAS CRUCES, NEW MEXICO; William Mattiace, individually, and in his official capacity as Mayor of the City of Las Cruces; Dolores Archuleta, individually, and in her capacity as a member of the City Council of the City of Las Cruces; Dolores Connor, individually, and in her capacity as a member of the City Council of the City of Las Cruces; Jose Frietze, individually, and in his capacity as a member of the City Council of the City of Las Cruces; Kenneth Miyagashima, individually, and in his capacity as a member of the City Council of the City of Las Cruces; Wesley Strain, individually, and in his capacity as a member of the City Council of the City of Las Cruces; Steve Trowbridge, individually, and in his capacity as a member of the City Council of the City of Las Cruces, Defendants-Appellees.
Foundation for Moral Law; National Legal Foundation, Amici Curiae.
Paul F. Weinbaum, Plaintiff-Appellant,
v.
Las Cruces Public Schools; Charles Davis; Leonel Briseno, Gene Gant, John Schwebke, and Sharon Wooden, as School Board Members of Las Cruces Public Schools, Defendants-Appellees. No. 06-2355. No. 07-2012. United States Court of Appeals, Tenth Circuit. September 12, 2008.

[541 F.3d 1021]

Brett Duke, The Law Offices of Brett Duke, P.C., El Paso, TX, for Plaintiffs-Appellants.

Matthew P. Holt, Holt, Babington, Mynatt P.C., Las Cruces, NM, for Defendants-Appellees.

Roy S. Moore, Gregory M. Jones and Benjamin Dupre, Foundation for Moral Law, Montgomery, AL, filed an amicus curiae brief for Foundation for Moral Law.

Steven W. Fitschen, Virginia Beach, VA, filed an amicus curiae brief for the National Legal Foundation.

Paul F. Weinbaum, pro se, Las Cruces, NM.

Before LUCERO, EBEL and HOLMES, Circuit Judges.

EBEL, Circuit Judge.

Paul Weinbaum, a resident of the Las Cruces area, brought two separate suits under 42 U.S.C. § 1983 claiming that Las Cruces, New Mexico (the "City") and the Las Cruces Public School District (the "District") have violated the Establishment Clause of the First Amendment by displaying, in various forms, three crosses on public property.¹ Weinbaum sought declaratory

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and injunctive relief in both suits, as well as damages and attorney's fees.

The district court evaluated Weinbaum's claims using the three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), as slightly recast by subsequent Establishment Clause jurisprudence. See Weinbaum v. City of Las Cruces ("Las Cruces"), 465 F.Supp.2d 1164 (D.N.M. 2006); Weinbaum v. Las Cruces Public Schools ("LCPS I"), 465 F.Supp.2d 1116 (D.N.M.2006) (granting in part and denying in part District's summary judgment motion); Weinbaum v. Las Cruces Public Schools ("LCPS II"), 465 F.Supp.2d 1182 (D.N.M.2006) (entering judgment for District, after trial, on Weinbaum's remaining claims). The court reasoned that the unique history of the City's name and the absence of any evidence that (1) the City or District had a religious motive in adopting and displaying the symbols or (2) the symbols had the effect of endorsing religion dispelled any constitutional concerns. Accordingly, the court entered judgment for the City in the litigation underlying Appeal No. 06-2355 and for the District in the litigation underlying Appeal No. 07-2012. Plaintiffs-Appellants appealed.

In Appeal No. 06-2355, Weinbaum and Boyd argue that the district court erred because the City's symbol has the effect of endorsing Christianity. In Appeal No. 07-2012, Weinbaum asserts that the purpose and effect of the District's display of three crosses on its maintenance vehicles and in two pieces of District-sponsored artwork is to endorse Christianity; he also takes issue with the District's written policy regulating religion in the District's schools.

In support of their position, Plaintiffs-Appellants note that this court has, in the past, held unconstitutional city and county seals that included crosses. We did not, however, issue a per se rule in those cases. These two Las Cruces cases illustrate the folly of doing so. On the whole, Establishment Clause cases are predominantly fact-driven, and these cases are particularly sui generis. Here, the City's name translates as "The Crosses" and, perhaps unsurprisingly, the City has opted to identify itself using a symbol that includes crosses. Derivatively, the District uses a symbol including crosses to identify its maintenance vehicles and also displays on District property two pieces of artwork that contain crosses. We recognize that a government's display of the Latin or Christian cross, and especially three such crosses, raises legitimate Establishment Clause concerns. Nevertheless, we affirm the district court's decisions because Las Cruces's unique name and history and the record in this case adequately establish according to requisite standards that the City and District's challenged symbols were not intended to endorse Christianity and do not have the effect of doing so.

I. Background

A. The Cross

The Christian or Latin cross — a cross with three equal arms and a longer foot — reminds Christians of Christ's sacrifice for His people. See Las Cruces, 465 F.Supp.2d at 1170; see also 11 ENCYCLOPEDIA OF RELIGION 7640 (Lindsay Jones, ed., 2005); id. at 7688. Accordingly, it is unequivocally a symbol of the Christian faith.² In the

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gospels of Matthew, Mark, and Luke, the Romans crucified two criminals on crosses flanking Jesus's. MATTHEW 27:38; MARK 15:27; LUKE 23:32-33. Hence, as the district court explained, the symbol of three crosses, with the middle cross raised above the accompanying crosses, often represents the crucifixion of Jesus at Calvary. See Las Cruces, 465 F.Supp.2d at 1170-71.

The district court also briefly summarized the cross's occasionally checkered history as a symbol; that is, the cross's transformation — in the eyes of many — from a symbol of Christ's love to a symbol of Christian conquest. See id. Because of this legacy, the cross, while humbling, inspiring, or empowering to some, intimidates, inflames, or unnerves others.

B. The Parties

The Plaintiffs-Appellants in Appeal No. 06-2355, Paul Weinbaum and Martin Boyd, are residents of the City.³ Both allege that they are "constantly forced to view the Las Cruces symbol." They also aver that, because they are not Christian, the symbol offends, intimidates, and alienates them.

Defendants-Appellees in Appeal No. 06-2355 include the City, the individuals who compose the City's governing body (the City Council of Las Cruces), and the City's Mayor. The City is about 225 miles nearly due south of Albuquerque, New Mexico. Las Cruces was founded in 1849, incorporated as a town in 1907, and then reincorporated as a city in 1946. The City is now New Mexico's second largest.

In the companion case, Appeal No. 07-2012, Weinbaum again appears as the plaintiff-appellant, although in this second appeal he proceeds pro se.⁴ Weinbaum resides within the District and his daughter, Olivia, is enrolled in a District school. See Las Cruces, 465 F.Supp.2d at 1165 n. 1; LCPS II, 465 F.Supp.2d at 1186. The District "is a governmental entity created by statute and governed by an elected School Board." LCPS II, 465 F.Supp.2d at 1186. It is New Mexico's second largest school district. Id. Weinbaum also sued individual members of the District's School Board in their official capacities. Id.

C. Origin of the Name "Las Cruces"⁵

By 1598, El Camino Real de Tierra Adentro ("the Royal Road to the Interior

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Lands") passed through the area where Las Cruces was eventually founded. However, because of the area's aridity and the local Native Americans' hostility, very few settlers inhabited the area until the late 1840s. By 1849, though, a village about fifteen miles north of present-day Las Cruces had become overcrowded. The mayordomo of that village sought the help of the U.S. Army in resettling some of his townspeople elsewhere. To alleviate the overcrowding, a U.S. Army Lieutenant, Delos Sackett, "laid out a grid of streets using a rawhide rope" at the site of present-day Las Cruces and thereby founded a new town.

Historians have offered two theories regarding the origin of that new town's name, "Las Cruces." Some have argued that the settlement came to be called "Las Cruces" because the Butterfield Overland Mail Route — a trail from San Antonio to California — crossed El Camino Real in present — day Las Cruces. As such, Las Cruces was the "crossing" point of the two major trails. In his expert report, however, Dr. Hunner convincingly contends that this account is flawed. Indeed, this account appears anachronistic because the Butterfield Trail did not pass through present-day Las Cruces until the 1850s, a few years after Las Cruces was named.

Instead, Dr. Hunner and other historians argue that the City's name is rooted in the appearance of memorials to the victims of a series of massacres in the area. Dr. Hunner notes that, "[i]n a tradition that continues to this day, crosses have been placed in New Mexico at the site of tragic deaths." Present-day Las Cruces and its surrounding area had a series of such deaths.⁶ Thus, Susan Shelby Magoffin, a settler, described the Las Cruces area in a diary entry from February 1847: "Yesterday, we passed over the spot where a few years since a party of Apaches attacked Gen. Armijo as he returned from the Pass with a party of troops, and killed some fourteen of his men, the graves of whom, marked by a rude cross, are now seen." By 1849, it seems, a "forest of crosses" stood in the area. Hence, the City's founding as El Pueblo del Jardin de Las Cruces ("the City of the Garden of the Crosses").

On the basis of this evidence, Dr. Hunner concludes that "the newly created town in 1849 was named after the crosses that marked the graves of the travelers on the historic trail."...