The city of Bloomfield, New Mexico, has filed a certiorari petition seeking review of a Tenth Circuit ruling that held that the city violated the Establishment Clause by allowing private parties to place a Ten Commandments monument on the city hall lawn, alongside three similar monuments displaying the Declaration of Independence, the Gettysburg Address, and the Bill of Rights.
I’m pleased to pass along that the Ethics and Public Policy Center (the think tank I direct) has filed an amicus brief in support of the city’s petition.
EPPC’s amicus brief argues that the so-called “endorsement test” applied by the Tenth Circuit is, as Justice Kennedy predicted in similar language nearly thirty years ago, “a recipe for confusion, misapplication, and trivialization of core constitutional principles”; that this case is a “perfect opportunity to finally do away with that failed test”; and that Justice Kennedy’s majority opinion just three years ago in Town of Greece v. Galloway provides a historical test that ought to replace the endorsement test in the context of passive religious displays.
My thanks to Benjamin W. Snyder and Bridget R. Reineking of Latham & Watkins for their excellent and generous pro bono work on the brief.