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Jackley Joins Amicus Curiae Defending NM City Display of Ten Commandments

Marty Jackley is fighting Wiccans!

In a press release last Thursday, our Attorney General said he had joined our state to a friend of the court brief “requesting that the United States Supreme Court review whether a monument of the Ten Commandments placed on city property violates the Establishment Clause of the United States Constitution.” Jackley and twenty other attorneys general apparently want to “preserve the historical practice of religious monuments on public property.” (Hey, Marty: “historical” doesn’t mean “justified”; see also, slavery.)

Oddly, Jackley didn’t name the specific case. That case is City of Bloomfield, New Mexico v. Jane Felix and B.N. Coone, U.S. Supreme Court Docket #17-60. In 2011, the ACLU helped Bloomfield residents Jane Felix and B.N. Coone, both “polytheistic Wiccans,” sue their city for plunking the Ten Commandments in stone on front lawn of their City Hall. Felix, Coone, and the ACLU contended, rightly, that displaying the Ten Commandments “has a primary effect to advance religion, and conveys the message that religion and a particular religious belief is favored or preferred.” Even to those of us non-Christian Americans who recognize that most of the Commandments are pretty good advice also recognize that erecting the Ten Commandments on public property says, “Yay, Christianity!” not “Let’s have a sober discussion about the history of Western jurisprudence.” Felix and Coone won in district court and at the 10th Circuit Court of Appeals.

In response, the city has gotten support from Jesus-pushers like the Alliance for Defending Freedom (the Arizona group that was in Pierre in 2016 pushing the anti-transgender potty panic bill) and the Foundation for Moral Law to ask the Supreme Court to take up the case.

The amicus curiae Jackley has endorsed asks Roberts–Thomas–Gorsuch Court (uh oh) to throw out the current tests for violation of the Establishment Clause and replace them with a standard that would favor religious displays by governments:

The confusion stems in large part from the Establishment Clause test the Court announced in Lemon v. Kurtzman, under which a challenged statute “must have a secular legislative purpose,” must not have the “principal or primary effect” of “advanc[ing] []or inhibit[ing] religion,” and “must not foster ‘an excessive government entanglement with religion.’” 403 U.S. 602, 612–13 (1971) (quoting Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664, 674 (1970)). The Court should jettison that test, which leads lower courts to engage in analysis far afield from the text, purpose, and history of the Establishment Clause. It should also abandon reliance on a “reasonable observer” standard. Finally, the Court should adopt a coercion-based test that will facilitate reliable application by lower courts and yield predictable results for litigants.

…A coercion-based analysis, see County of Allegheny, 492 U.S. at 659–63 (Kennedy, J., concurring in the judgment in part and dissenting in part), would both respect the structure of the First Amendment’s two religion clauses and implement the text of the Establishment Clause consistent with its purpose and history. As the Court has explained, “government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’” Lee, 505 U.S. at 587 (quoting Lynch, 465 U.S. at 678); see also Van Orden, 545 U.S. at 693 (Thomas, J., concurring) (stating that “[t]he Framers understood an establishment ‘necessarily [to] involve actual legal coercion’” (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 52 (2004) (Thomas, J., concurring in the judgment)); Lee, 505 U.S. at 640–42 (Scalia, J., dissenting) (discussing “[t]he coercion that was a hallmark of historical establishments of religion”). And because the type of coercion-based test that several Justices have proposed would also be substantially clearer and more workable than other suggested alternatives, it is all the more attractive in this uncertain area of the law [Paxton et al., amicus curiae, Bloomfield v. Felix and Coone, August 2017].

The coercion test is already used to restrict actions like clergy-led prayer in graduation ceremonies. One could argue that governments erecting religious monuments are coercing taxpayers to support religious expression. The Bloomfield appellants might evade that argument by pointing out that the Bloomfield monument was privately funded, but they cannot escape that a publicly funded space is being co-opted for this religious display. The city government is using Felix and Bloomfield’s money to promote someone else’s religion.

This appeal to the coercion test shows the lack of empathy of Jackley and his fellow Christianist Attorneys General. It’s easy not to recognize coercion when you’re not the ones being coerced. Even Wiccans deserve freedom from religious coercion by the state.

The Supreme Court has yet to agree to hear the case.


  1. mike from iowa 2017-08-14 09:00

    Just Jackley polishing another tur……boner-fide for right wing extremists.

  2. buckobear 2017-08-14 12:26

    What’s this gonna cost us ??

  3. Cory Allen Heidelberger Post author | 2017-08-14 14:05

    As South Dakotans, Buckobear, probably very little. The Texas A.G. appears to have handled preparing the brief. Jackley may have done no more than sign it. He himself won’t have to go to court to argue anything. The only “cost” is the embarrassment of our state’s good name being used again to promote theocracy.

  4. mike from iowa 2017-08-14 14:14

    Like I said, Master, just polishing tur…..bonafides for his base.

  5. Eve Fisher 2017-08-14 16:54

    And let’s not forget that he can trot out the “I defend religious freedom” line when the campaign for governor gets started.

  6. Cory Allen Heidelberger Post author | 2017-08-14 19:31

    And let’s ask, Eve, if Jackley will defend the right of Muslim residents to have passages of their holy books engraved in stone on public property.

  7. Eve Fisher 2017-08-15 09:26

    I agree. I’d also like it if they’d occasionally allow the Sermon on the Mount rather than the Ten Commandments – a reminder of “Judge not that ye be not judged” would be a refreshing change.

  8. Cory Allen Heidelberger Post author | 2017-08-15 10:50

    Interesting suggestion for an alternative text, Eve! What relevance do all Ten Commandments really have to practical lawmaking? The first five—no gods before Yahweh, no graven images, no Lord’s name in vain, no work on Sabbath—offer little if any guidance to most lawmaking. The first one, spoken by the state, directly violates the Establishment Clause. #7, banning adultery, has no legal bearing except in serving as grounds for divorce; adultery itself is no longer a crime, and no one is calling for putting adulterers in jail. #10, on coveting neighbors’ wives and asses and such, doesn’t offer much legal guidance: I can sit on my step, look across the street, and think, “Boy, I sure wish I had a four-wheeler like that!” Heck, such coveting might inspire me to blog harder, push the Tip Jar more (ahem!), and make more cash so I can go buy a four-wheeler of my own (for blog adventures, of course, like checking out the Dakota Access pipeline route for leaks and getting around at protest camps!).

    The only Commandments that seem central to lawmaking from 1787 or 2017 are #6, #8, and #9—don’t kill, don’t steal, don’t lie. If these big Ten Commandment stones are really celebrating law, why not memorialize the Commandments that actually figure prominently in our laws?

  9. leslie 2017-08-25 13:01

    Jackley’s campaign religious advisor, the rev. Dale Bartscher is stumping quite visibly at the Penn Co fair, btw.

    Republicans don’t oversee responsibilities when there is a crony benefit (EB5– where Rounds ect gets to review written questions ahead of time, lawyer-up, and avoid personal appearance at GOAC hearing questioning–a new prophylactic standard in SD!! AND Tidemann likely tutored Peters on how things go to avoid Republican incrimination before GOAC); ( MCEC– Melody wants to be out of town to avoid a GOAC personal hearing appearance, even though an employee who resigned had told her several times MCEC was being mismanaged. Melody didn’t want to pursue that either apparently, and won’t answer why, says her state paid lawyer Bachand, (as compared to Stace’s ham-fisted pro-se attempt). GOAC, you might dig a little deeper with Melody and what she knew and when. See, these polite little questions to Republican appointments with state lawyers don’t get you very far, do they, Ms. Peters, Mr. Tidemann?? Or was that the point?!

    AND…” [according to] Director Guericke … BC Kuhn Evaluation, LLC wrote … original grant applications for the GEAR UP, College Access, and Teacher Quality grants for no charge. He stated that it is a “customary [Republican?] practice ” in education for the grant writer to then write themselves into the grant, as a partner, to be compensated for services performed….this type of arrangement introduces risk as it doesn’t allow for competition in the procurement of services that are provided by the grant writer {Department of Legislative Audit, “Special Review of Mid Central Educational Cooperative,” 2017.05.19, p. 12}. ” [my emphasis]

    So why would JACKLEY honestly characterize the time committed by his deputies as anything but ZERO to review and research the nation-wide legal theory/procedural strategy and tactics for each of the many cases he is an amicus in, to monitor and review the cases for weekly/monthly report and evaluation in AG staff meetings. These are real costs which RAGA convinces some 28 or more states’ HUNDREDS of republican lawyers to cooperate and associate in for the Republicans. This is substantial clout for the Republicans, the lawsuit proponents, and at a substantial cost to each state, which Jackley demonstrates he is willing to hide from tax payers to sucker his evangelical base during his campaign for governor, like Trump is so clearly doing too, btw.

    There is nothing unethical Republicans are willing to avoid in their constant, sacrosanct bid to maintain power. separation of church and state? naw. Voters rights? naw. ect. This is just what EPA head Pruitt, frmr Missouri AG, is doing neutralizing EPA reliance on the “Chevron” test where agency regulatory interpretation is favored in respect to an agency’s primary expertise. (i’ll find the cite)

    Democrats MUST win one of these seats as governor, atty general, US rep., SOS or other major office.

    ps-Schumer and Sen. Brian Schatz (D-Hawaii) said on Wednesday that the president’s decision to pick Sam Clovis to be an undersecretary at the USDA sends a “clear as day message to the world that this administration continues to tolerate hate.”

    cronyism. religion. environmental “over” regulation. hate. it all works for the Republicans to maintain power. “Whatever works” is a liberal motto, but certainly doesn’t float in politics.

    Cory–John Wayne’s toilet paper–OMG :)

  10. mike from iowa 2017-08-25 14:47

    New article about Democrat problem with gerrymandering in 2018- Dems figure to get 55% of the votes for congress, but only have 47% of the congressional seats-again. It has been that way in Wisconsin and Texas for awhile.

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