RSS Feed
The Court's Monumental Error
JUST LAW AND RELIGION
By Michael Kessler
In the recent Supreme Court ruling on Pleasant Grove City, Utah v. Summum, Justice Scalia concurred with words of reassurance: "The city can safely exhale. Its residents and visitors can now return to enjoying Pioneer Park's wishing well, its historic granary -- and, yes, even its Ten Commandments monument -- without fear that they are complicit in an establishment of religion."
Should we yet breathe easily?
Summum had contended, among other challenges, that Pleasant Grove City had violated the Free Speech clause by permitting the Ten Commandments monument to be placed by the Fraternal Order of the Eagles, but denying Summum permission to place their own monument. The Court took the case in order to resolve the Free Speech issue: Can the government select some expressions by groups but deny others?
However, they ignored the obvious Establishment Clause problem: when Pleasant Grove City selected the particular kind of religious speech of the Ten Commandments monument, weren't they impermissibly endorsing that message, and dismissing the view of Summum? If so, the Court's decision diminishes the right of religious minorities to access the public square and speak their own messages.
The Court had its reasons. Justice Alito framed the issue around "who" was speaking with the monument. Either, Pleasant Grove had set up a public forum in the park, where private parties could express their own views through such displays, or Pleasant Grove City was itself "speaking" by accepting the monument.
If the city had created a public forum for private speakers, then Pleasant Grove's decision to accept the Eagle's statute -- and to deny the Summum statute -- would have run afoul of established Free Speech law. Pleasant Grove cannot discriminate among viewpoints of private citizens in allowing them to speak in a neutral forum. They could not, for instance, issue a permit for Bill O'Reilly to speak in the park, but deny Jon Stewart the opportunity to do the same, merely because they prefer O'Reilly's views.
However, Alito tells us that when the Eagles placed the monument, it was Pleasant Grove City who was "speaking" through the monument, and the Free Speech clause "does not regulate government speech." Even though the "message" was provided by a private organization, Pleasant Grove could have many legitimate governmental purposes for placing a monument including, as Justice Breyer put the matter, "to further a variety of recreational, historical, educational, aesthetic, and other civic interests."
Since a monument can bear many meanings, and even though the Eagles may have wanted to promote morality among children with the Ten Commandments, the government may have simply been intending to aesthetically balance the park's layout with a big hunk of granite, or espouse a view that their laws are based on the Hebraic covenant. Accepting the Ten Commandments monument did not mean that Pleasant Grove necessarily endorsed the particular reasons of the Eagles. The monument, once accepted by Pleasant Grove, became the city's expression alone.
And, Alito tells us, America's history shows that governments engage in "selective receptivity," choosing among a variety of options to craft the government's message. The danger is that if governments must be viewpoint-neutral in selecting park monuments, then cities will be overcome with an "influx of clutter," or worse, they would have to remove "longstanding and cherished monuments" if they want to be selective at all. Parks across the country will be cluttered with every type of whacko monument. Or, the public square will be denuded of any cherished cultural objects.
The horror of clutter notwithstanding, the particular kind of monument at issue in Pleasant Grove City is religious symbolism. How can the government select one group's religious expression and deny another's? If we allow the government, under the banner of "government speech," to pick and choose which religious viewpoints gain a privileged perch in town parks, doesn't this open a dangerous path of discrimination against minority religions?
Justice Alito even raised this specter: "This does not mean that there are no restraints on government speech...government speech must comport with the Establishment Clause."
Yet Pleasant Grove City, with the Court's blessing, endorsed one type of religious speech over another. The net result of this Free Speech clause case is that elected representatives -- and a majority of the citizens -- got to favor a majority's religious view through direct government endorsement, while denying other religions the privileged space in the town square.
Alito asserts that since "a government entity is ultimately accountable to the electorate and the political process for its advocacy," the government can be turned out in the next election if the public dislikes their selections. Of course, this is a naïve view of the political process -- a healthy dose of the Federalist papers might caution Alito against relying on the majority of the citizens to constrain a government that is acting improperly. This concern is heightened when the citizens themselves -- the supposed check on legislative impropriety -- are the very source behind the "preferred" religious message.
We will have to wait to see what this Court can cook up to answer these Establishment Clause concerns. Justice Scalia pointed to the Ten Commandments case Van Orden v. Perry (2005) as a quick guide. At issue was another of the Eagle's monuments, on the Texas State Capitol grounds, set among dozens of other monuments. As Justice Scalia points out, the Court held that the Texas "monument conveyed a permissible secular message, as evidenced by its location in a park that contained multiple monuments and historical markers" and, in the particular context of the Capitol grounds, was a "passive" and "historic" acknowledgment "of the role played by the Ten Commandments in our Nation's heritage."
In Pleasant Grove, though, the monument stood essentially alone. The quirky Summum practitioners saw that the government had provided a privileged place for this powerful religious symbol and they wanted to have theirs included on the public square. They read the Establishment Clause -- as even the Court has -- to require that the government could not endorse the messages of some religious groups while preferring others.
Pleasant Grove, ruled by followers of a majority tradition, chose to speak religiously, but not include Summum in the chorus of voices. The Court, in a unanimous voice, agreed that Pleasant Grove can speak freely about matters of religious import.
The danger of the government speaking religiously -- but selectively -- must now be confronted head on. And until that issue gets settled in a way that does not disenfranchise minority religions, we should all wait to exhale.
Dr. Michael Kessler is Assistant Director of the Berkley Center for Religion, Peace, and World Affairs and Visiting Assistant Professor of Government at Georgetown University.
By Michael Kessler |
March 17, 2009; 9:39 AM ET
| Category:
Just Law and Religion
Share: Email a Friend | 
Technorati
| Del.icio.us | Digg | Facebook
Previous: Leaderless in Pakistan |
Next: Pope: "I Deeply Regret...."
Posted by: GabrielRockman | March 23, 2009 1:39 PM
Report Offensive Comment
The fact is, though I represent one of those religions that Christianists in America refer to, 'Well, how can we use the public property to push our agenda without letting anyone to speak positively about Wiccans,'
Heck, I mean, doubtless-Christian architects put a cabuchon related to Aeolus as a mere symbol of *wind,* some scream it's "Pagan idolatry,' and should be banned, while the same people say 'All Public Courts Should Have Graven Images Of Our Bible Commanding 'Thou Shalt Worship My god And No Other.'
...Well, this is stupid. Certainly, this case shows that whoever these 'Summum' folks are, it takes a lot of wrangling to make *their* written 'Commands' not OK while making Biblical ones mandatory.
In a saner America, maybe we could all share our art and not be trying to command anyone. Like you'd almost expect of a free country.
This is apparently not the case, and that's the biggest reason the government shouldn't be putting any of this stuff up.
Just some Dominionistic Christians sliming the legal system to have their own way and no other. And that's not Justice.
You know, that 'Pagan image' recent appointees had to cover up not too long ago.
Posted by: Paganplace | March 21, 2009 3:41 PM
Report Offensive Comment
"If I were to move to a country that was founded by Buddhists with Buddhist principals woven throughout their legal system and I had Children in Gov. funded schools and they were attempting to teach my children Civics without mentioning the Buddhist Religion for fear of offending the religious minority - I would be irate."
----------------------------------
ProjectMoses,
And you'd be completely wrong. The United States was founded on the principles of the enlightenment, chiefly individual religious liberty, secured by completely separating religion from civil government. Our Constitution begins "We the People" and doesn't appeal to any deity from any religion. We live under a completely godless Constitution and our laws are based on Greek and Roman democratic traditions that pre-date any of the Judeo-Christian religions. None of our laws are based on exclusively Christian principles. Not one.
It is never silly to defend our religious liberty against even the slightest encroachment of theocracy. But if you want to talk about what is silly, we should start with your preposterous claim that our laws are based in any way on archiac superstitions like Christianity.
Here is a question for you:
Why do overly pious people always try to use the power of government to push their archaic superstitions on everybody else?
Posted by: Freestinker | March 20, 2009 11:10 AM
Report Offensive Comment
I want to insert a different way of looking at these issues:
If I were to move to a country that was founded by Buddhists with Buddhist principals woven throughout their legal system and I had Children in Gov. funded schools and they were attempting to teach my children Civics without mentioning the Buddhist Religion for fear of offending the religious minority - I would be irate.
My children would be hampered from fully understanding the country I moved them to and am hoping that they would be able to succeed in.
Now I would be equally irate if that class was designed to proselytize my children into Buddhism, but to not teach the "factual" basis upon which that Country and its legal system was founded because of some notion that in doing so they would be sponsoring a state run Church is the proverbial - throwing the baby out with the bath water!
Can we not teach courses that teach the Christian underpinnings of this Country without starting the Church of America? It is a disservice to American Students that they are not taught what this Country's religious heritage as it relates to the founding and ongoing civil system out of fear of being accused of starting a state run Church.
The most read book in the world is the bible. The religion that formed the modern Western World (the good the bad and the ugly) - all but the Far East - is Christianity - YET IT CANNOT BE TAUGHT IN PUBLIC SCHOOLS.
Once again, I am not suggesting it be taught as a faith that one should follow, but taught, so that these kids know what most Country's, that they will be living and doing business in, were founded upon. It seems like commonsense to me and explains why virtually every government building in Washington DC is plastered with Judeo-Christian references.
Doesn’t it seem silly to waste the courts time on the Ten Commandments being displayed at a municipal, county or state property when Moses and the Ten Commandments can be found in several different places at the Supreme Court?
I guess that Christian idiot G.K. Chesterton said it best when he stated, “the only problem with commonsense is that it isn’t very common anymore.
Posted by: ProjectMoses | March 20, 2009 9:58 AM
Report Offensive Comment
The comments to this entry are closed.
While I disagree with this court's decision, I want to point out that the declaration of independence states that we are endowed with certain unalienable rights BY OUR CREATOR.
In every other country, rights come from the government. In our country, our rights were ours before the creation of government. In other countries, any rights given to the people can be taken back by the government. Our founders wrote that our rights that we gave up upon forming the government can be taken back by the people.
It is a very good thing that we get our rights from a non-denomination specific creator, rather than a government.