In
Felix v. City of Bloomfield, (10th Cir., Feb. 6, 2017), the U.S. 10th Circuit Court of Appeals denied an
en banc rehearing in a case in which the 3-judge panel found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See
prior posting.) Judge Kelly, joined by Judge Tymkovich, dissented from the denial of a rehearing in an opinion in which they argue for a dramatic re-examination of Establishment clause jurisprudence, saying in part:
This 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.
After an extensive examination of the history of the Establishment Clause, they say:
[T]he public display of memorials with historical significance should generally not be construed as an “establishment of religion,” even if one of the monuments also happens to be religious in nature.
