Las Cruces and the crosses

[Volokh, Eugene]

	I'm reading Weinbaum v. Las Cruces Public Schools, 2006 WL
3246468 (D.N.M. Nov. 9), and Weinbaum v. City of Las Cruces, 2006 WL
3246483 (D.N.M. Nov. 9) -- which were decided by the same judge -- and
finding it hard to reconcile their findings about purpose.  "Las Cruces"
means "the crosses," and was apparently named in 1849 after the various
crosses that were present in the site (as grave markings).  Its city
seal, which appears on city property, contains three Latin crosses in a
sunburst; so do the insignia that appear on school district vehicles.
The plaintiff challenged the crosses in the city seal, in the insignia
on school vehicles, and in various other displays in various places.

	The judge mostly rejects the plaintiff's challenge, finding that
given the name and the history of the city the crosses wouldn't have the
effect of leading a reasonable, knowledgeable observer to find a
governmental endorsement of religion.  But as to purpose, the matter is
mixed:  The judge holds that (1) there are no genuine issues of fact
related to the purposes behind most cross symbols, including the
insignia on the city seal, but (2) there are genuine issues of material
fact related to the school board's purpose in creating the insignia on
its vehicles.

	Now I'd understand a judge's reaching this result if there were
serious evidence of the school board's religious purpose.  But instead
we have lack of evidence as to (2) -- a not unusual situation in an
organization whose job is teaching students, not maintaining historical
records of its insignia decisions -- plus some slight evidence as to
(1).  In (1), the judge stresses that "No evidence of record links the
adoption or use of the Symbol with a religious purpose," and that the
government is entitled to at least some deference in its claims of
secular purpose.  But in (2), the judge seems to be much more demanding
about getting actual evidence about what purpose the relevant
decisionmakers had, apparently in the 1960s.  Can these two modes of
analysis really be reconciled?

	Here are the purpose sections of the two opinions.

(1)  There is no direct evidence of the City's purpose in using three
crosses in its seal. The only available evidence is the newspaper report
concerning Mayor Klein's request to adopt the seal upon reincorporation
in 1946. The available evidence concerning the design of the Symbol in
the early 1970s indicates a secular purpose of identifying the City.

When there is no evidence of the original purpose for adopting a
practice, the government may propose possible secular justifications for
the challenged practice. While the government "has the obligation to
propose a secular justification for the challenged practice ... [t]his
does not mean ... that the government fails the purpose prong in cases
in which there is no available evidence of the original intent for
adopting a practice." The City has identified three secular purposes
served by the Symbol: (1) identifying city activities and property; (2)
promoting the City's unique history; and (3) linking the City to its
origin. The present City Council has disavowed any religious purpose in
connection with the Symbol. (Defs.' Ex. L.) The record contains no
indication that the City acted with a religious purpose in adopting and
using the Symbol.

A professed secular purpose is entitled to some deference.. However,
that purpose "has to be genuine, not a sham, and not merely secondary to
a religious objective." Id. The court has a duty to " 'distinguis[h] a
sham secular purpose from a sincere one.' " Id. (quoting Santa Fe Indep.
Sch. Dist., 530 U.S. at 308). Once the government proposes a possible
secular purpose for the challenged practice, the party challenging the
practice has the opportunity to rebut the stated secular purpose with
evidence showing that the articulated purpose is insincere or a sham.
The City has articulated a plausible secular purpose for the design of
the Symbol. Plaintiffs have presented no evidence that the stated
secular purposes are insincere or a sham, or that there was any
religious purpose connected to the adoption of three crosses to identify
the City or the design or use of the Symbol....

[T]he choice of a symbol or seal to represent ... the City of Las Cruces
was driven by the name of the city. No further deliberation would have
been required nor implied in choosing the Symbol, which literally
reflects the name....  The secular purposes identified by the City are,
absent any evidence to the contrary, sufficiently sincere to pass
constitutional muster. The City adopted a seal containing three crosses
at the behest of Mayor Klein, who was Jewish. The seal was designed by
the City Attorney, E.G. Shannon. Although the exact circumstances
surrounding the adoption of the Symbol are unclear, none of the putative
designers of the Symbol was motivated by a religious purpose. There is
no evidence that the Symbol is now, or was ever, associated with a
religious purpose.

The Court has held government action unconstitutional where "openly
available data supported a commonsense conclusion that a religious
objective permeated the government's action." No evidence of record
links the adoption or use of the Symbol with a religious purpose. The
objective observer is deemed to be familiar with the history of the
government's actions and competent to understand what history has to
show. The Symbol has no objectively available history of manifesting a
religious purpose. An objective observer, "aware of the history and
context of the community and forum" in which the Symbol appears, would
not believe that the City acted with an ostensible and predominate
purpose of advancing religion, generally, or Christianity in particular,
in adopting and using the Symbol.

(2)  Plaintiff contends that Defendants' display of the emblem is
motivated by an improper religious purpose.... [H]e notes that
Defendants have not presented any evidence to "support the hearsay
comments provided by depositions of school district employees" regarding
the emblem's origin and history.  Plaintiff avers that, notwithstanding
Defendants' stated purpose, the religious symbolism of the crosses
predominates. Additionally, Plaintiff argues that Defendants purported
secular purpose is not genuine, given that LCPS uses multiple emblems.
While it continues to identify its maintenance vehicle with the emblem
challenged here, it uses another emblem--that does not feature obviously
religious symbols--on its stationary, official documents, and the main
LCPS administration building.
 
Undoubtedly, as a general matter, Defendants' stated secular
purpose--i.e., identifying their maintenance vehicles as belonging to
LCPS--is legitimate. But because there are "limits to the display of
religious messages or symbols," the Court must assess whether
Defendants' proffered purpose is genuine. After McCreary County, it is
clear that this Court should not defer to Defendants' stated purpose
without careful consideration. As noted above, to assess its
constitutionality, this Court must "examine the history of the [emblem's
use] ... in an attempt to determine whether [Defendants'] 'ostensible
and predominant purpose' in displaying" the emblem is to endorse the
Christian religion.
 
Upon exhaustive review of the record at bar--and despite the Court's
repeated entreaties for further factual development over the course of
this litigation's three year pendency--the Court is unable to determine
whether Defendants "predominate" purpose regarding the emblem is
secular....  [T]he record here does not contain any admissible evidence
regarding why, when, or by whom the emblem was first adopted by
Defendants. Compare, e.g., McCreary County, 125 S.Ct. at 2739 (tracing
the history of the challenged display in detail, including when, why,
and by whom the display was enacted by the defendant state actor), and
Van Orden, 125 S.Ct. at 2858 (same), and O'Connor, 416 F.3d at 1225-27
(same), with (Pretrial Order[Doc. 139] 6 ("Since the early 1960's
[LCPS'] maintenance vehicles have used a distinctive emblem on the sides
of those vehicles.").)

Nor is there any evidence that such information does not exist. True,
former LCPS Superintendent Martinez stated that, "[b]ased on [his]
research of the [LCPS] maintenance vehicle emblem," he was "not able to
determine the origin of the emblem other than it has been used since the
early [19]60s." Significantly, however, neither Defendants' briefing,
nor other record evidence, states what Defendant Martinez's "research"
entailed. To the contrary, the record provides no information about
Defendants' efforts to trace the emblem's origins and use by LCPS.
Consequently, the inquisitive, "reasonable observer" identified by the
Tenth Circuit in O'Connor is left to wonder--as is this Court--about the
emblem's history. Given that the Court is obligated to verify that
Defendants' stated secular purpose is "genuine, not a sham, and not
merely secondary to a religious objective," Martinez's statement is not
enough.
 
The Court, of course, recognizes the possibility that evidence regarding
the circumstances of Defendants' adoption of the emblem no longer
exists. And, going forward, should it be evidenced that the emblem's
origins are unknown that would not mean that Defendants cannot satisfy
the purpose prong. See, e.g., McCreary County, 125 S.Ct. at 2735 (noting
that "Establishment Clause analysis does not look to the veiled psyche
of government officers" and that, if government actors' religious motive
is not apparent to the objective observer, then, "without something
more," the "government does not make a divisive announcement that in
itself amounts to taking religious sides"); Friedman, 781 F.2d at 780 n.
3 (declining to find that Defendant failed to satisfy the "purpose
prong" even though "there was no evidence of the county's purpose for
originally adopting the seal").  But this is summary judgment and
Fed.R.Civ.P. 56 squarely places the burden on the moving party. See
supra Part IV. That burden has not been met.