Weinbaum v. City of Las Cruces, NM

FILED
United States Court of Appeals
Tenth Circuit

September 12, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL F. WEINBAUM; MARTIN J.
BOYD,

Plaintiffs – Appellants,

v.

THE 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; DOLORES
CONNOR, individually, and in her
capacity as a member of the City
No. 06-2355
Council of the City of Las Cruces;
JOSE FRIETZE, individually, and in
his capacity as a member of the City
Council of the City of Las Cruces;
KENNETH MIYAGASHIMA,
individually, and in his capacity as a
member of the City Council of the
City of Las Cruces; WESLEY
STRAIN, individually, and in his
capacity as a member of the City
Council of the City of Las Cruces;
STEVE TROWBRIDGE, individually,
and in his capacity as a member of the
City Council of the City of Las
Cruces,

Defendants – Appellees.
 Foundation for Moral Law; National
Legal Foundation,

Amici Curiae.

PAUL F. WEINBAUM,

Plaintiff – Appellant,
v.

LAS CRUCES PUBLIC SCHOOLS;
CHARLES DAVIS; LEONEL No. 07-2012
BRISENO, GENE GANT, JOHN
SCHWEBKE, and SHARON
WOODEN, as School Board Members
of Las Cruces Public Schools,

Defendants – Appellees.

Appeal from the United States District Court
for the District of New Mexico
(D.C. Nos. 2:CIV-05-996-RB/LAM and 2:CIV-03-1043-RB/LAM)

Brett Duke, The Law Offices of Brett Duke, P.C., El Paso, TX, for Plaintiffs-
Appellants.

Matthew P. Holt, Holt, Babington, Mynatt P.C., Las Cruces, NM, for Defendants-
Appellees.

Roy S. Moore, Gregory M. Jones and Benjamin Dupre, Foundation for Moral
Law, Montgomery, AL, filed an amicus curiae brief for Foundation for Moral
Law.

Steven W. Fitschen, Virginia Beach, VA, filed an amicus curiae brief for the
National Legal Foundation.

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

Before LUCERO, EBEL and HOLMES, Circuit Judges.

EBEL, Circuit Judge.

Paul Weinbaum, a resident of the Las Cruces area, brought two separate

suits under 42 U.S.C. § 1983 claiming that Las Cruces, New Mexico (the “City”)

and the Las Cruces Public School District (the “District”) have violated the

Establishment Clause of the First Amendment by displaying, in various forms,

three crosses on public property. 1 Weinbaum sought declaratory and injunctive

relief in both suits, as well as damages and attorney’s fees.

The district court evaluated Weinbaum’s claims using the three-part test set

forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (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 denying in part District’s summary judgment motion); Weinbaum v.

1
Martin J. Boyd, also a resident of Las Cruces, joined Weinbaum as a
plaintiff in the suit against the City. We will refer to Weinbaum and Boyd as
“Plaintiffs-Appellants.” We have consolidated, for ease of disposition, Appeal
No. 06-2355, which was orally argued, and Appeal No. 07-2012, which was
submitted on the briefs.

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Las Cruces Public Schools (“LCPS II”), 465 F. Supp. 2d 1182 (D.N.M. 2006)

(entering judgment for District, after trial, on Weinbaum’s remaining claims). The

court reasoned that the unique history of the City’s name and the absence of any

evidence that (1) the City or District had a religious motive in adopting and

displaying the symbols or (2) the symbols had the effect of endorsing religion

dispelled any constitutional concerns. Accordingly, the court entered judgment for

the City in the litigation underlying Appeal No. 06-2355 and for the District in the

litigation underlying Appeal No. 07-2012. Plaintiffs-Appellants appealed.

In Appeal No. 06-2355, Weinbaum and Boyd argue that the district court

erred because the City’s symbol has the effect of endorsing Christianity. In

Appeal No. 07-2012, Weinbaum asserts that the purpose and effect of the

District’s display of three crosses on its maintenance vehicles and in two pieces of

District-sponsored artwork is to endorse Christianity; he also takes issue with the

District’s written policy regulating religion in the District’s schools.

In support of their position, Plaintiffs-Appellants note that this court has, in

the past, held unconstitutional city and county seals that included crosses. We did

not, however, issue a per se rule in those cases. These two Las Cruces cases

illustrate the folly of doing so. On the whole, Establishment Clause cases are

predominantly fact-driven, and these cases are particularly sui generis. Here, the

City’s name translates as “The Crosses” and, perhaps unsurprisingly, the City has

opted to identify itself using a symbol that includes crosses. Derivatively, the

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District uses a symbol including crosses to identify its maintenance vehicles and

also displays on District property two pieces of artwork that contain crosses. We

recognize that a government’s display of the Latin or Christian cross, and

especially three such crosses, raises legitimate Establishment Clause concerns.

Nevertheless, we affirm the district court’s decisions because Las Cruces’s unique

name and history and the record in this case adequately establish according to

requisite standards that the City and District’s challenged symbols were not

intended to endorse Christianity and do not have the effect of doing so.

I. Background

A. The Cross

The Christian or Latin cross – a cross with three equal arms and a longer

foot – reminds Christians of Christ’s sacrifice for His people. See Las Cruces, 465

F. Supp. 2d at 1170; see also 11 E NCYCLOPEDIA OF R ELIGION 7640 (Lindsay Jones,

ed., 2005); id. at 7688. Accordingly, it is unequivocally a symbol of the Christian

faith. 2 In the gospels of Matthew, Mark, and Luke, the Romans crucified two

criminals on crosses flanking Jesus’s. M ATTHEW 27:38; M ARK 15:27; L UKE

23:32-33. Hence, as the district court explained, the symbol of three crosses, with

the middle cross raised above the accompanying crosses, often represents the

crucifixion of Jesus at Calvary. See Las Cruces, 465 F. Supp. 2d at 1170-71.

2
But not exclusively so; the cross is an oft-used symbol in other cultures
and religions as well. See 5 E NCYCLOPEDIA OF R ELIGION at 3434; 14
E NCYCLOPEDIA OF R ELIGION at 9339 (discussing cross as symbol of tree of life).

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 The district court also briefly summarized the cross’s occasionally

checkered history as a symbol; that is, the cross’s transformation–in the eyes of

many–from a symbol of Christ’s love to a symbol of Christian conquest. See id.

Because of this legacy, the cross, while humbling, inspiring, or empowering to

some, intimidates, inflames, or unnerves others.

B. The Parties

The Plaintiffs-Appellants in Appeal No. 06-2355, Paul Weinbaum and

Martin Boyd, are residents of the City. 3 Both allege that they are “constantly

forced to view the Las Cruces symbol.” They also aver that, because they are not

Christian, the symbol offends, intimidates, and alienates them.

Defendants-Appellees in Appeal No. 06-2355 include the City, the

individuals who compose the City’s governing body (the City Council of Las

Cruces), and the City’s Mayor. The City is about 225 miles nearly due south of

Albuquerque, New Mexico. Las Cruces was founded in 1849, incorporated as a

town in 1907, and then reincorporated as a city in 1946. The City is now New

Mexico’s second largest.

3
Olivia Weinbaum, Paul Weinbaum’s unemancipated minor daughter,
originally joined the two other plaintiffs. However, the district court dismissed
her claims without prejudice because she did not make allegations sufficient to
confer standing and, as an unemancipated minor, “she lacks the legal capacity to
sue on her own behalf.” See Las Cruces, 465 F. Supp. 2d at 1165 n.1. Plaintiffs-
Appellants did not appeal this decision.

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 In the companion case, Appeal No. 07-2012, Weinbaum again appears as the

plaintiff-appellant, although in this second appeal he proceeds pro se. 4 Weinbaum

resides within the District and his daughter, Olivia, is enrolled in a District school.

See Las Cruces, 465 F. Supp. 2d at 1165 n.1; LCPS II, 465 F. Supp. 2d at 1186.

The District “is a governmental entity created by statute and governed by an

elected School Board.” LCPS II, 465 F. Supp. 2d at 1186. It is New Mexico’s

second largest school district. Id. Weinbaum also sued individual members of the

District’s School Board in their official capacities. Id.

C. Origin of the Name “Las Cruces”5

By 1598, El Camino Real de Tierra Adentro (“the Royal Road to the Interior

Lands”) passed through the area where Las Cruces was eventually founded.

However, because of the area’s aridity and the local Native Americans’ hostility,

very few settlers inhabited the area until the late 1840s. By 1849, though, a

4
In both cases, Weinbaum proceeded pro se before the district court. On
appeal, however, he is represented by counsel in Appeal No. 06-2355.
5
The district court appointed Dr. Jon Hunner, a professor of history at New
Mexico State University, as an expert witness pursuant to Rule 706 of the Federal
Rules of Evidence. See Las Cruces, 465 F. Supp. 2d at 1171 n.4 (explaining
appointment of Dr. Hunner as expert “on the history of Las Cruces, including the
historical context of the name, ‘Las Cruces,’ and the use of crosses within the
community of Las Cruces”); see also LCPS I, 465 F. Supp. 2d at 1131 n.17; LCPS
II, 465 F. Supp. 2d at 1188 n.5. Dr. Hunner prepared a report entitled “A Report
on the Use of Crosses in the City Symbols of Las Cruces.” The district court
accepted the report, but granted Plaintiffs-Appellants’ motion to strike portions of
the report that contained legal opinions. See Las Cruces, 465 F. Supp. 2d at 1171
n.4.

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village about fifteen miles north of present-day Las Cruces had become

overcrowded. The mayordomo of that village sought the help of the U.S. Army in

resettling some of his townspeople elsewhere. To alleviate the overcrowding, a

U.S. Army Lieutenant, Delos Sackett, “laid out a grid of streets using a rawhide

rope” at the site of present-day Las Cruces and thereby founded a new town.

Historians have offered two theories regarding the origin of that new town’s

name, “Las Cruces.” Some have argued that the settlement came to be called “Las

Cruces” because the Butterfield Overland Mail Route–a trail from San Antonio to

California–crossed El Camino Real in present-day Las Cruces. As such, Las

Cruces was the “crossing” point of the two major trails. In his expert report,

however, Dr. Hunner convincingly contends that this account is flawed. Indeed,

this account appears anachronistic because the Butterfield Trail did not pass

through present-day Las Cruces until the 1850s, a few years after Las Cruces was

named.

Instead, Dr. Hunner and other historians argue that the City’s name is rooted

in the appearance of memorials to the victims of a series of massacres in the area.

Dr. Hunner notes that, “[i]n a tradition that continues to this day, crosses have

been placed in New Mexico at the site of tragic deaths.” Present-day Las Cruces

and its surrounding area had a series of such deaths. 6 Thus, Susan Shelby

6
In 1712, Apache marauders killed members of a caravan in the area of
present-day Las Cruces. Spanish soldiers arrived after the fact, buried the dead,
(continued...)

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Magoffin, a settler, described the Las Cruces area in a diary entry from February

1847: “Yesterday, we passed over the spot where a few years since a party of

Apaches attacked Gen. Armijo as he returned from the Pass with a party of troops,

and killed some fourteen of his men, the graves of whom, marked by a rude cross,

are now seen.” By 1849, it seems, a “forest of crosses” stood in the area. Hence,

the City’s founding as El Pueblo del Jardin de Las Cruces (“the City of the

Garden of the Crosses”).

On the basis of this evidence, Dr. Hunner concludes that “the newly created

town in 1849 was named after the crosses that marked the graves of the travelers

on the historic trail.” Despite Dr. Hunner’s conclusions, Plaintiffs-Appellants

persisted before the district court in claiming that “Las Cruces” can be translated

as “the crossings.” See Las Cruces, 465 F. Supp. 2d at 1172. With a nifty bit of

forensic etymology, the district court cemented Dr. Hunner’s conclusion. The

district court noted that the use of the feminine definite article “las” rather than the

masculine definite article “los” confirms the fact that “cruces” was intended to be

the plural form of “cruz” (a feminine noun meaning “cross”), rather than “cruce”

(a masculine noun meaning “crossing”). Id. Accordingly, “if the village had been

6
(...continued)
and erected crosses over the graves. A little over a half century later, “a bishop, a
priest, a Mexican army colonel, a captain, four trappers, and four choir boys”
were killed in the same area. In 1830, “forty travelers from Taos” suffered the
same fate. Finally, just a decade or so later, Native Americans killed fourteen
soldiers in a convoy led by General Manuel Armijo, a Mexican governor.

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named for crossroads or crossings, it would have been named Los Cruces, and not

Las Cruces.” Id. A second linguistic clue accords with Dr. Hunner’s account: the

district court noted that El Pueblo del Jardin de Las Cruces is a Spanish

euphemism for a cemetery. Id. at 1173 n.5.

D. The City’s Use of Crosses in its Symbol

In the suit giving rise to Appeal No. 06-2355, the Plaintiffs-Appellants

challenge the City’s official symbol (the “symbol” or “seal”). See Att. A. The

symbol consists of three interlocking crosses surrounded by a sun symbol. The

center cross is white and slightly taller than the two outside, blue crosses.

Prior to 1946, however, the City’s seal depicted a bunch of grapes. Dr.

Hunner “found no accounts of how the city chose three crosses for its logo.”

Nonetheless, his report details what he was able to uncover about the gradual

evolution of the City’s symbol and seal. 7

7
A July 1941 lease agreement between the Town of Las Cruces and Mrs.
A.L. Sweet printed on city letterhead depicts a “a grouping of three crosses, the
middle one larger and taller than the two flanking it” with the motto “The City of
Crosses.” In 1946, Mayor Sam Klein requested that a new seal designed by City
Attorney E.G. Shannon replace the old town seal. Shannon’s design also included
three crosses. In the City’s 1963-1964 Annual Report, however, an unknown
designer added a sunburst around the three independent crosses. A similar
symbol appeared in the 1965 Annual Report. The District borrowed this
particular iteration of the symbol, which now appears on the District’s
maintenance vehicles. Dr. Hunner notes that, throughout the 1960s and 1970s,
“the city also used a sunburst with three slanted crosses in front of the Organ
Mountains.”
Three Las Cruces residents claim credit for the current City symbol. The
record contains no evidence indicating that any of the three had a religious motive
(continued...)

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 However it originated, the symbol is currently used as the City’s official

seal. As such, the symbol appears on Las Cruces public property, including signs,

flags, buildings (such as City Hall and the City library), official uniforms (such as

those of the City’s police and firefighters), and vehicles. Moreover, the symbol

appears on public documents including the City’s letterhead, notices, maps,

brochures, and advertisements. In some cases, the words “City of Las Cruces–For

Official Use Only” attend the symbol. The City expended public monies on both

the development and distribution of the symbol.

Other entities in Las Cruces have also adopted crosses as part of their trade

dress. For example, the Chamber of Commerce adopted a symbol with three

crosses in 1970, explaining: “The three crosses were joined at the ends of the

transverse bars and at the top of the uprights to combine forever the three cultures

basic to the area–Indian, Latin, and Anglo.” Many businesses in the area similarly

include three crosses in their logos.

D. The District’s Display of Crosses

In the litigation underlying Appeal No. 07-2012, Weinbaum challenged (1)

the symbol that appears on the District’s maintenance vehicles, see Att. B; (2) a

sculpture located outside the District’s Sports Complex, see Att. C; (3) a mural

located within Booker T. Washington Elementary (“BTW Elementary”), a District-

7
(...continued)
in creating the symbol. In fact, two explicitly denied any such intent.

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run school, see Att. D; and (4) the District’s Policy # 424, which expounds the

District’s stance on “Religion In The Schools,” see Att. E.

1. The Maintenance Vehicle Symbol

As noted above, the City’s 1965 Annual Report bore the same symbol that

now appears on the District’s maintenance vehicles. See App. B. The district

court found that the District has marked its maintenance vehicles with the symbol

since at least 1969. 8 LCPS II, 465 F. Supp. 2d at 1187. The District currently has

a fleet of approximately 35 maintenance vehicles; no other District vehicles sport

the symbol. 9 Id. at 1187-88. The District explained that it uses the symbol to

identify District vehicles, in part because of the safety implications of having

unauthorized or unidentified vehicles on school property. See id. at 1188.

8
After delving into the history of the symbol’s use on District vehicles at
trial, the district court found that the symbol was likely adopted at the suggestion
of a former District Physical Plant Director. LCPS II, 465 F. Supp. 2d at 1188.
9
The symbol has a diameter of 12 inches and depicts a blue sunburst with
three blue crosses in a white ring in the middle of the sunburst. LCPS II, 465 F.
Supp. 2d at 1187. The middle blue cross is slightly taller than the two flanking it;
each cross is less than two inches tall. Id. Surrounding the sunburst, a blue band
contains the words “FOR OFFICIAL USE ONLY.” Id. Just outside that band,
another blue band contains the words “LAS CRUCES PUBLIC SCHOOLS.” Id.
A different symbol appears on all other District property–including
buildings, stationary, and official documents. Id. at1188. This second symbol
consists of a Zia sun symbol, flanked by two cacti, with hills and an adobe
structure in the background. See App. F. Charles Davis, the Vice President of
the District’s School Board, explained that the District had the maintenance
vehicles prior to the design contest for the new symbol.

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 2. The Sports Complex Sculpture

The District’s regional sports complex features a multi-purpose stadium that

seats over 10,000 people. Just a few years after the stadium’s completion, the

District’s Local Selection Committee, in conjunction with New Mexico Arts in

Public Places Program, solicited designs for a sculpture that would decorate the

south exterior wall of the complex. See LCPS I, 465 F. Supp. 2d at 1122-23. The

Committee sought a design that incorporated the theme, “The Pursuit of

Excellence.” Id. at 1123. A local artist, Ruth Bird, submitted a design plan. Id.

After deliberations, the Local Selection Committee picked Bird’s design. Id.

Bird entitled her sculpture “Unitas, Fortitudo, Excellentia” (“Unity,

Strength, Excellence”). Id. at 1123-24. The artwork features a rusty steel ring

with a diameter of 7.5 feet in which an arching stainless steel bar intersects three

vertical stainless steel bars of varying lengths. See id. at 1124; see also App. C.

The sculpture’s title is inscribed in capital letters along the bottom portion of the

steel ring. LCPS I, 465 F. Supp. 2d at 1124. An explanatory plaque notes that the

“three vertical crosses . . . represent the diverse cross-section of our community,”

while the “crossbeam represents . . . the ‘Pursuit of Excellence.’” Id. at 1145-46

(quotation omitted). 10

10
Bird denies that any religious inclination inspired her imagery. See LCPS
I, 465 F. Supp. 2d at 1145. Instead, as the plaque states, “[t]he sculpture
emphasizes [o]ur strength in unity as a community [a]nd our commitment to
excellence.” A second plaque credits the New Mexico Arts Office of Cultural
(continued...)

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 3. The Mural at Booker T. Washington Elementary

Weinbaum also challenges a mural located at BTW Elementary. See App.

E. A grant from the U.S. Department of Education’s 21st Century Community

Learning Centers program funded the mural. Between 1998 and 2000, this

program disbursed federal grants to school districts to encourage educational

projects involving student artwork. See LCPS II, 465 F. Supp. 2d at 1189.

Under BTW Elementary’s grant, certain students participated in an after-

school program, the Safe After School Program, run by a local non-profit. Third,

fourth, and fifth grade participants in the program designed the mural with the help

of a New Mexican artist named Ken Wolverton. See id. Wolverton led a brain-

storming session with the students, who then decided on the images and materials

for the mural. Id. Wolverton then helped the children organize their ideas and

transpose their artwork onto the mural’s ceramic tiles. Id.

The mural includes five tiles. Id. at 1190. The middle panel depicts three

wooden crosses arranged in front of mountains resembling the Organ Mountains, a

local topographical feature. See id.; see also App. D. The panel to the left of the

middle panel portrays chiles, a chile field, and, again, the Organ Mountains. See

LCPS II, 465 F. Supp. 2d at 1190. The panel to the right depicts a yucca plant in

bloom and the same mountainous background. The two outmost panels feature a

10
(...continued)
Affairs for funding the sculpture. See id. at 1123-24, 1146 n.31.

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child holding a book (on the left end panel) and Booker T. Washington (on the

right end panel). Id.

Prior to designing the mural, the students decided on where to locate the

mural. The students opted for a prominent place in BTW Elementary’s hallways.

Id. An explanatory plaque credits the 21st Century Community Learning Center

for funding and attributes the mural’s design to the Safe After School Program’s

students “with the visual artist Ken Wolverton.” 11 Id.

4. Policy # 424

Lastly, the district court construed Weinbaum’s pro se pleadings to allege

that certain elements of District Policy # 424 (the “Policy”), “RELIGION IN THE

SCHOOLS,” are unconstitutional and that the District applied the Policy

unconstitutionally.

The Policy governs the role of religion in the District’s school system. It

begins by stating that “[p]ublic schools have the responsibility to teach about

religion but shall neither actively sponsor nor interfere with religions.” See App.

E. Thereafter, the Policy incorporates the three prongs of Supreme Court’s Lemon

test as a set of guidelines. Id. The Policy comprehensively addresses the various

legal limitations and responsibilities that regulate the role of religion in the

11
The district court found that the District’s school board never approved
the mural’s design and that it was not required to do so. Moreover, no one at the
District, BTW Elementary, or the non-profit apparently discussed whether the
design conformed with the District’s policy on religious imagery in the schools
(Policy # 424) before the mural was installed. LCPS II, 465 F. Supp. 2d at 1190.

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curriculum, the observance of religious holidays, and the depiction of religious

symbols. Additionally, the Policy provides that “[r]eligious symbols may be

displayed or used as a teach-ing [sic] resource provided no effort is made to

impose any particular beliefs which may be associated with such symbols. They

may be used as examples of a culture and/or a specific religious heritage.” Id.

F. The District Court’s Opinions

In the City symbol case, the court exhaustively explicated the history of the

Latin cross as a symbol, the City’s history, and the City’s use of the contested

symbol. With this factual foundation settled, the court turned to the Lemon test,

as shaped by subsequent Supreme Court cases. First, the district court held that

the City’s secular justifications for using its symbol were persuasive because the

symbol “literally reflects the name [of the City].” Las Cruces, 465 F. Supp. 2d at

1178. As such, the symbol did not have the “ostensible and predominate purpose

of advancing religion.” Id. at 1179. Second, the historical context persuaded the

court that the symbol does not have the effect of endorsing religion. Id. at 1179-

80. Finally, because the City’s contested conduct did not involve it with a

religious institution, the court held that use of the symbol did not excessively

entangle the City with religion. Id. at 1180.

In the companion case, the district court conducted a very similar analysis,

but factored in the school context. The court ultimately granted the District

summary judgment on the issue of whether the District’s display of the Sports

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Complex sculpture violates the Establishment Clause. See LCPS I, 465 F. Supp.

2d at 1143-52. Similarly, the court disposed of Weinbaum’s facial challenge to

District Policy # 424 by granting the District’s summary judgment motion. Id. at

1152-54. The court withheld judgment on the maintenance vehicle symbol, the

mural, and Weinbaum’s suggestion that the District had misapplied Policy # 424

pending further development of the facts at trial. After a bench trial, the district

court held that neither the maintenance vehicle symbol nor the mural had the

purpose or effect of endorsing religion. LCPS II, 465 F. Supp. 2d at 1193-1200.

The court also rejected Weinbaum’s as-applied challenge to Policy # 424. Id. at

1197-1200.

Weinbaum appeals the court’s grants of summary judgment in both cases, as

well as its post-trial decisions. In addition, Weinbaum’s pro se brief in No. 07-

2012 asserts that the district court was biased against him and identifies a series of

decisions by the district court that Weinbaum believes were erroneous.

II. Discussion

A. Jurisdiction

As a threshold matter, Article III requires that the Plaintiffs-Appellants have

standing to bring these cases. See O’Connor v. Washburn Univ., 416 F.3d 1216,

1222 (10th Cir. 2005). The district court concluded that Plaintiffs-Appellants had

standing. See Las Cruces, 465 F. Supp. 2d at 1165 n.1; LCPS I, 465 F. Supp. 2d at

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1125-26. We review that determination de novo. See New England Health Care

Employees Pension Fund v. Woodruff, 512 F.3d 1283, 1288 (10th Cir. 2008).

“To demonstrate standing, a plaintiff must allege actual or threatened

personal injury, fairly traceable to the defendant’s unlawful conduct and likely to

be redressed by a favorable decision of the court.” Foremaster v. City of St.

George, 882 F.2d 1485, 1487 (10th Cir. 1989). In Establishment Clause cases,

“[a]llegations of personal contact with a state-sponsored image suffice to

demonstrate . . . direct injury.” O’Connor, 416 F.3d at 1223.

Here, Plaintiffs-Appellants allege that the City’s use of its symbol “directly

affects [them] because the use is conspicuous, resulting in direct, personal contact

with [them].” Similarly, in his complaint against the District, Weinbaum alleged

that “[t]he constant exposure to the typical three Latin crosses found on [District] .

. . property is a constant reminder to [him] and his child that they are less that [sic]

fully accepted in the community and in the schools.” These facts suffice to show

an injury in fact under O’Connor. See also Reynoldson v. Shillinger, 907 F.2d

124, 125 (10th Cir. 1990) (affording pro se plaintiff’s filings some leeway for

purposes of standing analysis). Moreover, the Plaintiffs-Appellants’ alleged

injuries stem directly from the conduct of the City and the District. Lastly, in both

cases, a favorable judgment from the federal court would redress the injuries. As

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such, the Plaintiffs-Appellants have standing to pursue both cases before this

court. 12 We exercise jurisdiction under 28 U.S.C. § 1291.

B. Standard of Review

We review de novo a “district court’s findings of constitutional fact” and its

“ultimate conclusions” regarding a First Amendment challenge. See Fleming v.

Jefferson County Sch. Dist., 298 F.3d 918, 922-23 (10th Cir. 2002); see also

O’Connor, 416 F.3d at 1223; Snyder v. Murray City Corp., 159 F.3d 1227, 1230

n.7 (10th Cir. 1998) (en banc). In so doing, we must “make an independent

examination of the whole record.” Snyder, 159 F.3d at 1230 n.7 (quotation

omitted); see also O’Connor, 416 F.3d at 1223. This independent review

facilitates the courts’ “control of . . . the legal principles governing the factual

circumstances necessary to satisfy” Establishment Clause protections. Fleming,

298 F.3d at 922 (quoting Lilly v. Virginia, 527 U.S. 116, 136 (1999)).

12
We also conclude that Weinbaum has prudential standing to bring his
claim against the District. As noted above, Weinbaum did not assert
Establishment Clause claims on behalf of his daughter Olivia in the litigation
underlying Appeal No. 07-2012. Rather, the essence of his claim is that he
suffered a cognizable injury under the Establishment Clause because the District’s
actions infringe on his right to direct the religious education of his daughter.
Because Weinbaum has asserted that District’s conduct violates his First
Amendment rights, this court need not invoke “judicially-imposed limits” on its
power to hear this case. See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.
203, 225 n.9 (1963) (holding that parents “directly affected by the laws and
practices against which their complaints are directed” surely have cognizable
interests for standing purposes).

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 With respect to the district court’s grants of summary judgment to the City

and the District, we must ensure that “there is no genuine issue as to any material

fact” and that the City is “entitled to judgment as a matter of law.” F ED . R. C IV . P.

56(c). We “view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party.” Grace United Methodist Church v.

City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006) (quotation omitted).

Lastly, in considering Appeal No. 07-2012, we must “construe[] liberally”

Weinbaum’s pro se pleadings. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). We need not, however, act as Weinbaum’s advocate. Id.

C. The First Amendment’s Establishment Clause

The first clause of the First Amendment provides, “Congress shall make no

law respecting an establishment of religion . . . .” U.S. C ONST . amend. I. This

substantive limitation applies also to the “legislative power of the States and their

political subdivisions” as a result of the Fourteenth Amendment. Santa Fe Indep.

Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000). “At its core, the Establishment

Clause enshrines the principle that government may not act in ways that ‘aid one

religion, aid all religions, or prefer one religion over another.’” Snyder, 159 F.3d

at 1230 (quoting Lee v. Weisman, 505 U.S. 577, 600 (1992) (Blackmun, J.,

concurring)); see also O’Connor, 416 F.3d at 1223. 13

13
Some doubt the historical provenance of the neutrality principle. See,
e.g., McCreary County v. ACLU of Ky., 545 U.S. 844, 885-90 (2005) (Scalia, J.,
(continued...)

- 20 -
 Despite scattered signals to the contrary, 14 the touchstone for Establishment

Clause analysis remains the tripartite test set out in Lemon. See Utah Gospel

Mission, 425 F.3d at 1258-59; O’Connor, 416 F.3d at 1223-24; Gaylor v. United

States, 74 F.3d 214, 216 (10th Cir. 1996). To pass constitutional muster, the

13
(...continued)
dissenting) (criticizing the principle as “a thoroughly discredited [judicial] say-
so”); cf. Michael W. McConnell, Establishment and Disestablishment at the
Founding, Part I: Establishment of Religion, 44 W M . & M ARY L. R EV . 2105, 2108
(2003) (noting that Justices of the Supreme Court have tended to ignore one side
of the establishment debate during the Founding Era–the pro-establishment side);
Steven G. Gey, Reconciling the Supreme Court’s Four Establishment Clauses, 8
U. P A . J. C ONST . L. 725, 728-64 (2006) (listing ten different tests that the Court
has applied in Establishment Clause cases and noting that some of those tests
ignore the neutrality principle).
Regardless, even after the Supreme Court decided the twin Decalogue cases
in 2005 – McCreary and Van Orden v. Perry, 545 U.S. 677 (2005) – this court has
concluded that the Supreme Court’s Establishment Clause jurisprudence continues
to “mandate governmental neutrality between religion and religion, and between
religion and nonreligion.” O’Connor, 416 F.3d at 1223 (quoting Epperson v.
Arkansas, 393 U.S. 97, 103-04 (1968)) (alteration omitted); cf. Utah Gospel
Mission v. Salt Lake City Corp., 425 F.3d 1249, 1260 (10th Cir. 2005).
14
Supreme Court Justices have harshly criticized Lemon. See McCreary,
545 U.S. at 890 (Scalia, J., dissenting) (noting that “a majority of the Justices on
the current Court . . . have, in separate opinions, repudiated the brain-spun
‘Lemon test’”); Van Orden, 545 U.S. at 693-94 (Thomas, J., concurring); see also
Bauchman v. West High Sch., 132 F.3d 542, 551 (10th Cir. 1997) (listing cases).
In Van Orden, the plurality even noted that the Court had previously declined to
apply the Lemon test in certain Establishment Clause cases. Van Orden, 545 U.S.
at 685-86 (Rehnquist, C.J., plurality opinion). Nevertheless, the Lemon test
clings to life because the Supreme Court, in the series of splintered Establishment
Clause cases since Lemon, has never explicitly overruled the case. See Utah
Gospel Mission, 425 F.3d at 1259; O’Connor, 416 F.3d at 1224. While the
Supreme Court may be free to ignore Lemon, this court is not. See O’Connor,
416 F.3d at 1224 (“Until the Supreme Court overrules Lemon, however, it
remains binding law in this circuit.”).

- 21 -
governmental action (1) “must have a secular legislative purpose,” (2) its

“principal or primary effect must be one that neither advances nor inhibits

religion,” and (3) it “must not foster an excessive government entanglement with

religion.” Lemon, 403 U.S. at 612-13 (quotation omitted).

This court “interpret[s] the purpose and effect prongs of Lemon in light of

Justice O’Connor’s endorsement test.” O’Connor, 416 F.3d at 1224 (citing Lynch

v. Donnelly, 465 U.S. 668, 687-94 (1984) (O’Connor, J., concurring)). Under the

“endorsement test,” the “government impermissibly endorses religion if its

conduct has either (1) the purpose or (2) the effect of conveying a message that

religion or a particular religious belief is favored or preferred.” Bauchman, 132

F.3d at 551 (quotation omitted); see also County of Allegheny v. ACLU, 492 U.S.

573, 592-93 (1989) (noting that the Court has increasingly asked whether the

challenged governmental conduct endorses religion).

To sum up, the hybrid Lemon/endorsement test has three prongs. See

O’Connor, 416 F.3d at 1224. The first two echo Lemon’s first two tests;

specifically, these prongs focus on whether the government conduct was motivated

by an intent to endorse religion or whether the conduct has the effect of endorsing

religion. 15 O’Connor, 416 F.3d at 1224-25, 1227-28; see also Lynch, 465 U.S. at

15
Of course, in other situations, the issues probed by the first two prongs
would be framed in the converse: whether the government’s actual purpose was to
disapprove of religion and whether the governmental conduct has the effect of
disfavoring a certain religion or religion generally. See O’Connor, 416 F.3d at
(continued...)

- 22 -
690-92 (O’Connor, J., concurring). Finally, in certain cases where the government

involves itself with a religious institution, Lemon’s excessive entanglement prong

comes into play. See, e.g., Utah Gospel Mission, 425 F.3d at 1261.

Applying the first two prongs involves an objective inquiry. In deciding

whether the government’s purpose was improper, a court must view the conduct

through the eyes of an “‘objective observer,’ one who takes account of the

traditional external signs that show up in the ‘text, legislative history, and

implementation of the statute,’ or comparable official act.” McCreary, 545 U.S. at

862 (quoting Santa Fe, 500 U.S. at 308); see also O’Connor, 416 F.3d at 1225.

We must also consider the government’s secular justification for its

challenged conduct when applying the purpose prong. See Utah Gospel Mission,

425 F.3d at 1259; see also King v. Richmond County, 331 F.3d 1271, 1277 (11th

Cir. 2003) (noting that courts should consider government’s professed justification

when traditional external signs are absent or ambiguous). Unless the secular

justification is a “sham” or is “secondary” to a religious purpose, we defer to the

government’s professed purpose for using the symbol. See McCreary, 545 U.S. at

864; Utah Gospel Mission, 425 F.3d at 1259. We will not lightly “attribut[e]

unconstitutional motives to the government, particularly where we can discern a

plausible secular purpose.” Bauchman, 132 F.3d at 554. Finally, we must

15
(...continued)
1224-25, 1228.

- 23 -
scrutinize the government’s intent; thus, where the challenged conduct is the

selection or display of artwork, the artist’s inspiration or intent is irrelevant.

O’Connor, 416 F.3d at 1225 n.3.

Similarly, the “effect” prong looks through the eyes of an objective observer

who is aware of the purpose, context, and history of the symbol. The objective or

reasonable observer is kin to the fictitious “reasonably prudent person” of tort law.

See Gaylor, 74 F.3d at 217. So we presume that the court-created “objective

observer” is aware of information “not limited to ‘the information gleaned simply

from viewing the challenged display.’” O’Connor, 416 F.3d at 1228 (quoting

Wells v. City & County of Denver, 257 F.3d 1132, 1142-43 (10th Cir. 2001)). 16 If

a government symbol has long gone unchallenged, there is a suggestion that an

objective observer would not think that the symbol endorses a religious message.

See Van Orden, 545 U.S. at 702 (Breyer, J., concurring in judgment) (noting that

display of Decalogue on Texas Capitol’s grounds had gone legally unchallenged

for forty years); see also Card v. City of Everett, 520 F.3d 1009, 1021 (9th Cir.

16
Undoubtedly, the “objective observer” is presumed to know far more than
most actual members of a given community. Cf. ACLU of Ohio v. Capitol Square
Review & Advisory Bd., 243 F.3d 289, 303 (6th Cir. 2001). This heightened
standard recommends the test. By setting the bar at this level, the courts
encourage those who would challenge government conduct to investigate the
conduct carefully, by examining the purpose, context, and history of the conduct.
If, after such scrutiny, they remain convinced that the government has endorsed
religion, they may well have identified an actual violation of the Establishment
Clause.

- 24 -
2008); Skoros v. City of New York, 437 F.3d 1, 44 (2d Cir. 2006), cert. denied,

127 S. Ct. 1245 (2007) (Straub, J., concurring in part, dissenting in part).

The school context changes these objective inquiries only slightly. Because

“attendance is involuntary” and children may be impressionable, “[t]he Court has

been particularly vigilant” in ensuring that schools comply with the Establishment

Clause. Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987); see also Van Orden,

545 U.S. at 690-91 (Rehnquist, C.J., plurality opinion).

With this in mind, we must conjure a slightly different objective observer

for purposes of challenges to a school district’s conduct. The Supreme Court has

in one case considered an Establishment Clause challenge from the perspective of

“an objective Santa Fe High School student,” see Santa Fe, 530 U.S. at 308. In

another First Amendment case, this court has analyzed whether “students, parents,

and members of the public might reasonably perceive” that government conduct

“bear[s] the imprimatur of the school.” See Roberts v. Madigan, 921 F.2d 1047,

1057 (10th Cir. 1990) (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,

271 (1988)). In yet another case, the Supreme Court expressly declined any

Establishment Clause standard that would bar “a group’s religious activity . . . on

the basis of what the youngest members of the audience might misperceive.”

Good News Club v. Milford Cent. Sch., 533 U.S. 98, 119 (2001). Notwithstanding

these varying articulations, each of these cases seems to be focused on the same

standard: an objective standard based on reasonableness and informed knowledge,

- 25 -
with due consideration for the concern that school children will see the

governmental message or symbol.

In addressing this issue, the district court below relied on the analysis of a

divided panel of the Second Circuit in Skoros. See LCPS I, 465 F. Supp. 2d at

1138-39. The Skoros majority held:

[T]he relevant objective observer . . . is an adult who is aware of the
history and context of the community and forum in which the religious
display appears, and who understands that the display of a religious
symbol in a school context may raise particular endorsement concerns,
because of the pressure exerted on children by the law of imitation.

Skoros, 437 F.3d at 30 (internal citations and quotations omitted). 17 The Second

Circuit’s conclusion accords with Justice O’Connor’s understanding of the

endorsement test. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 40

(2004) (O’Connor, J., concurring) (“[T]he relevant viewpoint is that of a

reasonable observer, fully cognizant of the history, ubiquity, and context of the

practice in question.”). The Second Circuit articulation, adopted by the district

court below, seems to us a reasonable assimilation of the various articulations of

the test that are out there.

17
The dissenter on this point argued that the relevant objective observers are
both (1) the “students in the [New York City] elementary and secondary public
schools” and (2) their parents. Skoros, 437 F.3d at 50 (Straub, J., concurring in
part, dissenting in part). However, having two different sets of objective
observers would render the objective test more indeterminate and, perhaps at
times, inconsistent.

- 26 -
 With these principles in mind, we turn to the instant Establishment Clause

claims. In Appeal No. 06-2355, the Plaintiffs-Appellants argue only that the City

symbol has the effect of endorsing Christianity. Likewise, in his pro se brief

submitted in Appeal No. 07-2012, Weinbaum argues that the District’s sculpture,

maintenance vehicle symbol, mural and policy have the effect of endorsing

Christianity. But we construe his brief also to contend that the District had an

unconstitutional motive in selecting and displaying the sculpture and mural.

Neither appeal advances an excessive entanglement argument.

1. The Las Cruces City Symbol

The issue here is whether the City’s symbol has the effect of endorsing

Christianity. We first consider the objective perception of the symbol’s purpose

because purpose may lend some evidentiary weight to an inquiry of effect. Effects

are most often the manifestations of a motivating purpose. As background, we

note that the evidence regarding the City’s adoption of the symbol is

indeterminate, but there is no evidence that the City’s purpose was to advance

religion. However, the City offered various secular justifications for the symbol,

including identification of City property and identification with the City’s unique

historical name. We presume, then, that an objective observer would not conclude

that the City adopted the symbol with the purpose of endorsing Christianity.

- 27 -
 We turn next to what context and history would tell an objective observer

about the symbol’s effect. Context carries much weight in the Establishment

Clause calculus. See McCreary, 545 U.S. at 867 (“[U]nder the Establishment

Clause detail is key.”); O’Connor, 416 F.3d at 1222 (“Establishment Clause

questions are heavily dependent on the specific context and content of the

display.”). History is a critical aspect of the context of the City’s seal;

accordingly, under our hybrid test, we presume the objective observer’s familiarity

with the City’s history. See McCreary, 545 U.S. at 866 (noting that objective

observer is “presumed . . . competent to learn what history has to show”); Gaylor,

74 F.3d at 217.

Here, Las Cruces’s unique history explains why the City’s name translates

as “The Crosses” and, relatedly, why the City uses crosses in its symbol. Dr.

Hunner – the Rule 706 expert – established that the City’s name derives from its

founding near the site of a make-shift cemetery. Thus, the City’s name derives

from the “forest of crosses” that once memorialized those massacred in the area.

This history is not arcane; in fact, the City has made these historical facts readily

available in an explanatory brochure, “History of the Crosses: How Las Cruces

Got Its Name,” which Dr. Hunner’s report substantiates. See O’Connor, 416 F.3d

at 1228 (noting that “reasonable observer” would consider readily available

explanatory brochure). The brochure explains that clusters of crosses stood in the

area to commemorate “the gravesites [sic] of people who traveled through or

- 28 -
populated the area nearly two centuries ago.” Because a city’s symbol is

shorthand for the entity itself–a pictograph of sorts–the use of crosses makes

intuitive sense for a city named “The Crosses.” 18 Thus, the City’s unique history

militates against the argument that the symbol’s effect is to endorse Christianity.

It is also important here to observe the widespread use of multiple crosses

throughout the community to signify a connection to the City. Rather than being

a unique effort by the City to advance religion, it appears that symbols

containing multiple crosses identify many secular businesses within the Las

Cruces community. The use of crosses, by all accounts, is common in Las

Cruces, even setting aside the City’s use of its symbol. As such, our concern

that the City’s imprimatur attends the symbol’s religious imagery dissipates. In

this context, the objective observer would not be struck by the City’s

18
American towns, cities, and counties commonly incorporate the subject
matter of their name into their seals and flags. For example, the seal of
Columbus, Ohio, predictably depicts one of Christopher Columbus’s vessels (the
otherwise nondescript sailing vessel is identified as such by a red Latin cross on
the mainsail). See Wikipedia, Columbus, Ohio,
http://en.wikipedia.org/wiki/Columbus%2C_Ohio. Similarly, the seal of Long
Beach, California, depicts a long beach, see Wikipedia, Long Beach, California
http://en.wikipedia.org/wiki/Long_Beach%2C_California. Anchorage, Alaska,
displays an anchor and a sailing ship on its seal and flag, see Wikipedia,
Anchorage, Alaska, http://en.wikipedia.org/wiki/Anchorage%2C_Alaska, and the
City of Palo Alto, which translates as “Tall Tree,” displays a tall tree on its seal,
see City of Palo Alto, Independent Police Auditor’s Interim Report 1 (2008),
available at
http://www.cityofpaloalto.org/depts/pol/police_information/default.asp (last
visited August 19, 2008).

- 29 -
incorporation of crosses into its symbol and would not see that symbol as an

endorsement of Christianity.

Friedman v. Board of County Commissioners of Bernalillo County, 781

F.2d 777 (10th Cir. 1985) (en banc), is easily distinguishable. There the

dominant symbol in the seal of Bernalillo County was a radiant cross. Id. at 779.

Directly over it was the statement, in Spanish, “With This We Overcome.” Id.

The obvious meaning, which was confirmed by testimony, was that the County

shall overcome with the power of the Christian cross. The religious significance

of the seal is manifest. Even the County’s purported secular interpretation was

essentially religious in nature. The secular explanation was that the imagery

alluded to the Spanish conquistadors who, accompanied by Catholic priests and

friars, conquered the indigenous population of the area. But that explanation

unmistakably suggests that it was the force of the Christian faith that powered

the conquest and that it will continue to enable the County to overcome. 19 Thus,

there was “persuasive” evidence in the record that the “leads the average

observer to the conclusion that the county government was ‘advertising’ the

Catholic faith.” Id. at 781. In light of the absence of any credible secular

19
To underscore the religious imagery of the seal, underneath the cross was
a flock of sheep. Although again there was a post hoc effort to suggest that the
imagery referred to sheep-raising activity in the area, the most obvious
interpretation of the flock, as it appears under the radiant cross, is that it referred
to the followers of Jesus.

- 30 -
historical explanation for this seal and its strongly suggestive religious content, it

is not at all surprising that we held that seal to be a violation of the

Establishment Clause.

Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir. 1995), is a closer

case, but the seal of Edmond, Oklahoma, also contained unabashed Christian

symbolism. The Edmond seal was divided into quadrants, each apparently

representing an important aspect of the history and life of Edmond. 68 F.3d at

1228. Three of the quadrants contained secular symbols: a train and oil derrick,

a sooner wagon, and the Old North Tower, a local landmark and former

institution of higher learning. Id. But the fourth contained the Christian cross.

Id. The putative secular explanation of the Christian cross was that it reflected

the Christian heritage of the area but that, of course, is not a secular explanation

at all. Whether the religious symbolism refers to recent or long-standing values

of a city, it is equally religious in nature. The principal issue in Robinson was

whether the religious component of one quadrant of the seal could be diluted by

the secular components of the other three quadrants. We held it could not. So,

that case stands for the unremarkable proposition that a seal which contains an

unambiguous religious symbol could not pass muster under the Establishment

Clause.

- 31 -
 The seal of Las Cruces presents an altogether different situation.

Compelling evidence here establishes that the symbolism is not religious at all.

Rather, it simply reflects the name of the City which, in turn, reflects a series of

secular events that occurred near the site of the City. Unless one were to attack

the very name of the City itself – an attack which is not advanced here – it is

hardly startling that a City with the name “The Crosses” would be represented by

a seal containing crosses. And indisputable evidence showed that even the name

of the City reflected merely the cemetery, representing the violence in the area

rather than proselytizing forces in general or a particular faith. So here, unlike in

Robinson or Friedman, we have a secular symbol, which could be, and was,

understood to be secular by the residents of the City. 20

A closer analogy to the Las Cruces seal is the seal of Austin, Texas, at

issue in Murray v. City of Austin, 947 F.2d 147 (5th Cir. 1991). There, a divided

panel of the Fifth Circuit held that the city insignia of Austin, Texas, did not

violate the Establishment Clause. Id. at 158. The insignia, derived from Stephen

F. Austin’s family coat of arms, is topped by a Latin cross flanked by a pair of

wings. See id. at 149-50. The majority concluded that the insignia had a close

connection to the city’s namesake. Relying on the “long-standing unique

20
We note here that the use of three crosses in the City seal has gone legally
unchallenged for at least forty years. See Van Orden, 545 U.S. at 702 (Breyer, J.,
concurring in judgment); see also Card, 520 F.3d at 1021.

- 32 -
history” of the insignia and the fact that there was “absolutely no evidence of an

intent to proselytize, or advance, any religion,” the panel distinguished Friedman

and Robinson and held that the insignia did not have the effect of advancing

religion. Id. at 155.

What makes this case close is the City’s use of three crosses, and the fact

that the middle cross stands taller than the outside crosses. Still, the effect of the

seal is not to endorse Christianity. First, because the City is called “The

Crosses,” of course, the use of multiple crosses makes sense. Questioning the

exact number of crosses or their layout would “immerse[] [us] in the minutiae of

graphic design,” Murray, 947 F.2d at 170 (Goldberg, J., dissenting), an untenable

position we have pledged to avoid, see Robinson, 68 F.3d at 1233. Second, we

return to the fact that the Las Cruces community uses the crosses the way Palo

Alto uses the tall green tree. The effect of these symbols is to identify the cities

by referring (via pictographic shorthand) to the cities’ names. In light of Las

Cruces’s name and history, we conclude that the symbol does not have the effect

of endorsing Christianity.

2. The Maintenance Vehicle Symbol

Weinbaum also challenges the use of a symbol very similar to the City’s

seal on the District’s maintenance vehicles. He asserts that the vehicles’ symbol

has both the purpose and effect of endorsing Christianity. We disagree.

- 33 -
 The symbol on the maintenance vehicle confirms that the vehicles are

associated with the District and the City. Weinbaum conceded that this is critical

on school campuses, where safety concerns require that teachers, administrators,

and parents be able to identify vehicles. More importantly, in Las Cruces’s

unique context, the crosses signal an association with the City. Having generally

approved the seal of Las Cruces, we have no difficulty approving a fairly similar

representation of the District on its vehicles. 21

3. The Sports Complex Sculpture

Weinbaum advances similar claims about the sculpture located at the

District’s Sports Complex. As did the district court, we reject his claims.

Here, the record relates little regarding the District’s actual purpose for

selecting and displaying the sculpture. The District offered three secular

justifications for its selection and continued display of the sculpture: (1) the

sculpture beautifies the Sports Complex; (2) it is a monument to the pursuit of

excellence; and (3) it embodies the community of Las Cruces. See LCPS I, 465

F. Supp. 2d at 1143-44.

21
Additionally, we note that Weinbaum offered no evidence regarding the
District’s purpose in adopting the symbol. Objectively, we see no reason
whatsoever to conclude that the District intentionally adopted the symbol to
endorse religion.

- 34 -
 An objective observer familiar with the sculpture’s context and history

would not find that the District’s actual purpose in selecting or displaying the

sculpture was to endorse Christianity. Weinbaum failed to raise any genuine

issue of material fact in this regard. Rather, he essentially rested on (1) the fact

that the sculpture contains three crosses, (2) the artist’s religious beliefs and (3)

unsupported insinuations stemming from the religious beliefs of certain District

officials. For the reasons below, we conclude that Weinbaum’s claim does not

warrant a trial.

At first glance, the crosses in the sculpture are stylized and bear only a

fleeting resemblance to the standard Calvary scene. However, even if the

sculpture’s crosses were a more typical representation of Calvary, Las Cruces’s

name and history eclipse the Christian symbolism. As discussed above, the City

identifies with the crosses because of its unique history. The explanatory

plaques corroborate this connection to the community. Further, because

Weinbaum offered no credible evidence of an ex ante improper motive, the

District may offer “campus beautification [as] a permissible justification” for

selecting and displaying the sculpture. O’Connor, 416 F.3d at 1226. Nothing in

the record suggests that this proffered secular motive – nor, for that matter, any

of the District’s other justifications – is a sham.

- 35 -
 Moreover, Weinbaum cannot reach a jury merely by insinuating that

members of the School Board acted with improper motives because of their

personal beliefs. See Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164

(10th Cir. 2000) (holding that the non-moving party “must present sufficient

evidence in specific, factual form for a jury to return a verdict in that party’s

favor” (quotation omitted)); cf. McCreary, 545 U.S. at 863 (“If someone in the

government hides religious motive so well that the objective observer . . . cannot

see it, then without something more the government does not make a divisive

announcement that in itself amounts to taking religious sides.” (quotation

omitted)). And Weinbaum’s allegations regarding the artist’s beliefs and intent

are irrelevant to our analysis of the District’s motive. See O’Connor, 416 F.3d at

1225 n.3. 22

Similarly, there is no material dispute about the objective effect of the

sculpture. Cognizant of the sculpture’s purpose, context, and history, the

objective observer would recognize that the sculpture does not have the effect of

endorsing Christianity. The sculpture’s name, “Unitas, Fortitudo, Excellentia,”

alludes to the Olympic spirit, not to any shrouded religious themes. Cf.

22
Having concluded that the District’s purpose for selecting the sculpture
was permissible, we also concur with the district court’s decision regarding the
District purpose in continuing to display the sculpture. Weinbaum’s arguments in
this regard lack evidentiary support and thus fail to create a material factual
dispute.

- 36 -
International Olympic Committee, The Olympic Charter 11 (October 2007),

available at http://multimedia.olympic.org/pdf/en_report_122.pdf. Similarly, the

sculpture’s explanatory plaque elucidates the District’s secular rationale for

displaying the sculpture. As stated on the plaque, the sculpture intends to evoke

the Las Cruces community and the hope that they would, as one, witness

excellence at the Sports Complex.

4. The Mural

After trial, the district court held that there was no evidence that the

District’s actual purpose in sanctioning the BTW mural was to advance religion.

In addition, the court held that the District’s secular justification for the mural’s

content–namely that student participants in an after-school program created the

artwork–was genuine. See LCPS II, 465 F. Supp. 2d at 1197. Weinbaum again

rested his case on the fact that the mural contains crosses. The district court

rightly concluded that (1) the mural’s display was not motivated by the intent to

endorse religion and (2) the mural does not have the effect of endorsing religion.

First, the District had nearly nothing to do with the mural’s creation.

Weinbaum instead must argue that the continued display of the mural establishes

the District’s impermissible motive. Unlike the Kentucky statute struck down in

Stone v. Graham, 449 U.S. 39, 39-40 (1980), which mandated the display of the

Decalogue in every public classroom in the state, the District’s display of the

- 37 -
mural has plausible secular justifications. BTW Elementary children created the

collage, taking the images from the school’s neighborhood and the Las Cruces

community. The mural identifies unique aspects of BTW. Moreover, display of

the mural recognizes the work of the “latch-key” students who participated in the

after-school program. Weinbaum points only to the mural’s content, declining to

address its context and history. As such, Weinbaum cannot unseat the District’s

secular justifications.

Second, an objective observer would not believe that the BTW Elementary

mural has the effect of endorsing religion. The third, fourth, and fifth grade

students who designed the mural saw the crosses as emblematic of their

community, and not of Calvary. The mural’s gestalt corroborates this

connotation of the crosses. Chiles, chile fields, a yucca plant, and the Organ

Mountains place the crosses in context, namely the Las Cruces community,

thereby emphasizing the local character of the collage’s imagery. 23 Cf. Van

23
The outermost images specifically connect the collage to BTW
Elementary. John Schultz, the District’s former Coordinator for the Visual and
Performing Arts, testified that BTW Elementary is one of the oldest schools in the
community and, before desegregation, was the African-American school in Las
Cruces. Thus, the image of a young, African-American child with a book on one
end, and a depiction of Booker T. Washington himself on the other, tie the
artwork to a unique community and school.

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Orden, 545 U.S. at 681 (Rehnquist, C.J., plurality opinion) (discussing

Decalogue monument in context of other nearby monuments to Texan history). 24

5. Policy # 424

As discussed above, Weinbaum also challenges the very District policy

that ensures compliance with the Establishment Clause. Yet, the objective

observer would understand the measured tenor of the Policy from its very first

sentence: “Public schools have the responsibility to teach about religion but shall

neither actively sponsor nor interfere with religions.” The Policy sensibly and

comprehensively addresses the issues implicated by teaching that touches on

religion. 25 Nothing in the Policy, as written, creates doubts about its neutrality.

See Good News Club, 533 U.S. at 114 (noting that the Establishment Clause’s

24
The trial testimony also alleviates concerns about the effect the mural
might have on BTW Elementary students. For example, one witness testified that
District students begin learning about local history in kindergarten. This provides
assurance that BTW Elementary students, like the objective observer attuned to
the City’s history, see the crosses in a different light. Although another witness
mentioned that churches in the community also display crosses, he went on to list
other secular entities in BTW Elementary’s neighborhood that display three
crosses to demonstrate a connection to Las Cruces.
25
Weinbaum protests that the Policy uses the singular “religion” instead of
“religions.” This, he claims, shows that the Policy “condones the advancement of
the teachings of a singular religion in the public schools.” See LCPS I, 465 F.
Supp. 2d at 1152 (quotation omitted). The district court rightfully rejected this
contention. In contemporary diction, the term “religion” connotes more than just
one particular religion.

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“guarantee of neutrality is respected, not offended, when the government,

follow[s] neutral criteria and evenhanded policies” (quotation omitted)).

Weinbaum acknowledged on the witness stand that, other than the

maintenance vehicle symbol and the BTW Elementary mural, he had no evidence

that the District has misapplied Policy # 424. Having affirmed the vehicles’

symbol and BTW’s mural, we reject Weinbaum’s as-applied claim.

In sum, Weinbaum offered no evidence that persuades us that the Policy,

in any way, violates the Establishment Clause. Nor has he adduced evidence to

suggest that the District has applied the Policy unconstitutionally.

6. Summary Judgment in Establishment Clause Cases

Finally, we address whether granting summary judgment on certain claims

below was permissible under our Establishment Clause jurisprudence. Our

Lemon/endorsement test is an “objective inquiry,” and we accordingly do not ask

“whether particular individuals might be offended” by the government’s conduct.

Bauchman, 132 F.3d at 555. We need not sift through empirical

evidence–polling data, statistics, or the like–because we need “not ask whether

there is any person who could find an endorsement of religion . . . or whether

some reasonable person might think [the State] endorses religion.” Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O’Connor,

J., concurring) (quoting Ams. United for Separation of Church and State v.

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Grand Rapids, 980 F.2d 1538, 1544 (6th Cir. 1992) (en banc)) (brackets in

original). Instead, we must simply view the symbol through an objective

observer’s eyes. Accordingly, the question can be decided as a matter of law,

and is therefore appropriate for summary judgment on a sufficient record. See

O’Connor, 416 F.3d at 1231 n.7. We conclude that the record supported the

district court’s grants of summary judgment, as well as the court’s post-trial

judgments.

D. Weinbaum’s Assorted Other Complaints

Lastly, in Appeal No. 07-2012, Weinbaum asserts that the district court

erred in (1) denying Weinbaum’s motion to put on a witness not listed in his

initial pretrial order; (2) relying on Dr. Hunner as an expert regarding Las

Cruces’s history; and (3) refusing to consider an investigative report that

Weinbaum prepared regarding the District’s selection of the Sports Complex

sculpture. Additionally, Weinbaum argues that the district court was biased

against him.

“We review a district court’s evidentiary decisions for an abuse of

discretion.” McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1141 (10th Cir.

2006). And we review Weinbaum’s challenge to the district court’s impartiality

using that same standard. See Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1168

(10th Cir. 1999).

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 Having scrutinized the record and construed Weinbaum’s arguments

liberally, we see no reversible error in the district court’s evidentiary decisions.

Similarly, we reject Weinbaum’s argument that the district court was biased

against his position.

III. Conclusion

In the past, we have expressed concern that “[w]ith no principled basis for

distinguishing one seal from the next, our opinions will be fastidiously fact-

bound and our precedent hopelessly abstract.” Robinson, 68 F.3d at 1233

(quoting Murray, 947 F.2d at 170 (Goldberg, J., dissenting)). But the Supreme

Court has advised that, in Establishment Clause cases, “the inquiry calls for line

drawing; no fixed, per se rule can be framed.” Lynch, 465 U.S. at 678.

These cases are the type that preclude a mechanical rule. Unequivocally,

the City and District are currently displaying symbols and artwork that might be

constitutionally suspect in some other American communities or in other

contexts. But, Las Cruces is the “City of Crosses” and the use of crosses as a

symbol therein is not a religious statement. As such, the City and District’s

religious symbols “are not minor trespasses upon the Establishment Clause to

which [we] turn a blind eye. Instead, their history, character, and context

prevent them from being constitutional violations at all.” Newdow, 542 U.S. at

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37 (O’Connor, J., concurring). Because these cases are unique, a resolution tied

to reason makes more sense than a sweeping per se rule. We AFFIRM.

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ATTACHMENT A

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ATTACHMENT B

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ATTACHMENT C

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ATTACHMENT D

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ATTACHMENT E

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ATTACHMENT F

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