Weinbaum v. City of Las Cruces, N.M.

Decision Date09 November 2006
Docket NumberNo. CIV 05-0996 RB/LAM.,CIV 05-0996 RB/LAM.
Citation465 F.Supp.2d 1164
PartiesPaul F. WEINBAUM, Olivia S. Weinbaum, Martin J. Boyd, Plaintiffs, v. 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, New Mexico, Dolores Connor, individually, and in her capacity as a member of the City Council of the City of Las Cruces, New Mexico, Jose Frietze, individually, and in his capacity as a member of the City Council of the City of Las Cruces, New Mexico, Kenneth Miyagashima, individually, and in his capacity as a member of the City Council of the City of Las Cruces, New Mexico, Wesley Strain, individually, and in his capacity as a member of the City Council of the City of Las Cruces, New Mexico, and Steve Trowbridge, individually, and in his capacity as a member of the City Council of the City of Las Cruces, New Mexico, Defendants.
CourtU.S. District Court — District of New Mexico

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

Martin J. Boyd, Las Cruces, NM, Pro se.

Matthew P. Holt, Holt Babington & Mynat, Las Cruces, NM, Randilynn M. Lord, Attorney General's Office, Albuquerque, NM, Frank D. Weissbarth, Attorney General's Office, Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

BRACK, District Judge.

THIS MATTER came before the Court on Cross Motions for Summary Judgment (Docs. 140 and 142), filed on June 29, 2006. Jurisdiction arises under 28 U.S.C. § 1331 (2000).

Having reviewed the submissions of the parties, and being otherwise fully advised, I grant Defendants' motion and deny Plaintiffs' motion.

I. Background.

Plaintiffs1 allege that the adoption of the official symbol by the City of Las Cruces, New Mexico ("Symbol") violates the First Amendment of the United States Constitution. U.S. Const, amend. I. The Symbol consists of three crosses surrounded by a sunburst:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The City of Las Cruces ("the City") displays the Symbol prominently on public property, (Affidavits of Paul F. Weinbaum and Martin Boyd, M.D., Exs. 1-28), and uses the Symbol on official documents. (Id.)

Plaintiffs contend that the City's extensive use of the Symbol pervades the daily lives of city residents, including Plaintiffs. They allege that the City's creation and use of the Symbol is an endorsement and advancement of religion in violation of the Establishment Clause of the First Amendment. Further, they claim that the City's creation and use of the Symbol has the effect of advancing religion and fostering excessive governmental entanglement with religion. Plaintiffs brought suit under 42 U.S.C. § 1983 (2000), seeking a declaratory judgment, a permanent injunction, damages, as well as attorney and expert witness fees.

The question presented to the Court is whether, in Las Cruces, New Mexico, the Establishment Clause of the First Amendment allows the display of a city seal which contains three crosses. I hold that it does.

II. Establishment Clause Jurisprudence.

In 1997, Establishment Clause jurisprudence was considered to be in "hopeless disarray," Bauchman v. W. High Sch., 132 F.3d 542, 551 (10th Cir.1997), and "the task of parsing the Supreme Court's recent Establishment Clause cases [proved] nothing short of Herculean." Id. at 565 (Murphy, J., concurring in part and dissenting in part). What was true in 1997 is no less true in 2006, particularly in light of the 10 separate opinions authored in McCreary County v. ACLU of Ky., 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) and Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005). It is into this murky, turbulent water that this Court must wade.

The Religion Clauses of the First Amendment provide: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." U.S. Const, amend. I.2 The First Amendment "expresses our Nation's fundamental commitment to religious liberty by means of two provisions-one protecting the free exercise of religion, the other barring establishment of religion." McCreary County, 125 S.Ct. At 2746 (O'Connor, J., concurring). With the Religion Clauses, the Framers "intended not only to protect the integrity of individual conscience in religious matters, ... but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate[.]" McCreary County, 125 S.Ct. At 2742 (Souter, J.) (citing Wallace v. Jaffree, 472 U.S. 38, 52-54 and n. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985)). The First Amendment was "meant to endure, and to meet `exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.'" McCreary County, 125 S.Ct. At 2744 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415, 4 L.Ed. 579 (1819)).

The Founders "were aware that they were designing a government for a pluralistic nation—a country in which people of different faiths had to live together." Jon Meacham, American Gospel 101 (2006). At that time, the young nation already boasted considerable "religious diversity," with "Congregationalists dominating New England, Anglicans down south, Quakers in Pennsylvania, Catholics huddling together in Maryland, [and] Baptists seeking refuge in Rhode Island." Akil Reed Amar, The Bill of Rights: Creation and Reconstruction 45 (1998).

Indeed, two of the greatest legal minds of our time, Justice Scalia and Justice Stevens espouse nearly polar-opposite views of the Establishment Clause. Their respective positions illuminate the divisiveness that the provision's meaning engenders, and demonstrate the issue's complexity.

Justice Scalia rejects the notion that "[r]eligion is to be strictly excluded from the public forum"; he argues that the Establishment Clause permits state "acknowledgment of a single Creator"—specifically, "the God of monotheism." See McCreary County, 125 S.Ct. At 2748, 2753 & n. 3 (Scalia, J., dissenting). In support, Justice Scalia cites instances in which early American leaders and official proclamations of the federal government expressed "gratitude to God" in official or public settings. Id. at 2748-19, 2754 (noting that these statements and official acts "show what [the Clause] meant" to those who crafted it). Justice Scalia believes that, because the Framers and young government openly "favorfed] religion ... [and] invoked God," it is clear that the Establishment Clause does not proscribe state endorsement of "the God of monotheism." Id. at 2753, 2755. The Justice patently rebukes the neutrality principle. See id. at 2750-52.

With equal zeal, Justice Stevens maintains that the First Amendment "erect[s] a wall of separation between church and state" and that "government must remain neutral between valid systems of belief." See Van Orden, 125 S.Ct. At 2875, 2890 (Stevens, J., dissenting). In marked contrast to Justice Scalia, Justice Stevens believes that "the historical record of the preincorporation Establishment Clause is too indeterminate to serve as an interpretive North Star." Id. at 2888 ("the leaders of [the] founding era" held "widely divergent views" of establishment). The Justice posits that interpreting the provision's meaning requires examining "the Clause's that remain valid today." Id. at 2888. Hence, in Justice Stevens' view, "[t]he evil of discriminating today against atheists, `polytheists[,] and believers in unconcerned deities,' ... [is] a direct descendent of the evil of discriminating among Christian sects." Id. at 2890.

Justices Scalia's and Stevens' diametrically opposed perspectives on, not only what the Establishment Clause proscribes, but also how to interpret the provision, underscores just how contentious this area of the law remains. Quite plainly, their differing views of history and case law dispel the notion that there are easy answers to be had in Establishment Clause jurisprudence.3

"The First Amendment contains no textual definition of `establishment', and the term is certainly not self-defining." McCreary County, 125 S.Ct. at 2742. Given the competing values underlying the First Amendment and the need to accommodate an evolving society, "an elegant interpretive rule to draw the line in all the multifarious situations is not to be had." Id. There is "`no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible.'" Van Orden, 125 S.Ct. At 2868 (Breyer, J., concurring in the judgment) (quoting Abington Sch. Dist. v. Schempp, 374 U.S. 203, 306, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring)).

When defining the contours of the Religion Clauses, the "touchstone for our analysis is the principle that the `First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.'" McCreary County, 125 S.Ct. At 2733 (quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968)). However, adherence to neutrality must be tempered by a mindfulness of the basic purposes of the Clauses; namely, to "`assure the fullest possible scope of religious liberty and tolerance for all' ... [and] to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike." Van Orden, 125 S.Ct. At 2868 (Breyer, J., concurring in the judgment) (quoting Schempp, 374 U.S. At 305, 83 S.Ct. 1560 (Goldberg, J., concurring), and citing Zelman v. Simmons-Harris, 536 U.S. 639, 717-29, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (Breyer, J., dissenting)).

"Manifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the `understanding, reached ... after decades of religious war, that liberty and social stability demand a religious tolerance that respects the...

To continue reading

Request your trial
1 cases
  • Weinbaum v. City of Las Cruces, N.M.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 12 d5 Setembro d5 2008
    ...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 deny......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT