Overruled


Utah Park is Sealed Except to the Christian Mind
February 25, 2009, 2:09 pm
Filed under: Ian | Tags: , ,

Suppose two religious groups want to erect competing monuments to their faith in a public park.  Now suppose that the government allows one of them (the Christian group) to put up their monument, but tells the other (apparently heathen) group to shove off?

According to the Supreme Court’s very recent decision in Pleasant Grove City v. Summum, that kind of discrimination is a-ok—sort of.  For a detailed discussion of the Court’s five opinions in this case, I encourage everyone to read Adam’s long post on Summum here, but the short version is this:  Summum is a not-so-widely known faith that wanted to errect its monument in a park which already featured a statute of the Ten Commandments errected by a Christian group.  Normally, government can’t engage in such “viewpoint discrimination,” but the government is free to speak its own mind without having to give equal time to others.  Thus, the Supreme Court concluded, it’s fine to choose the Christian monument over the Summum monument because allowing a monument in a public park is a kind of government speech:

There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation. Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure. Neither the Court of Appeals nor respondent disputes the obvious proposition that a monument that is commissioned and financed by a government body for placement on public land constitutes government speech.

So the government may establish monuments to Christianity but not Summum—it may endorse Christianity, so to speak.

To be clear, Summum holds that when the government prefers a Christian monument to a Summum monument, this doesn’t violate the free expression part of the First Amendment.  The Court quite strangely avoided the big elephant in the room: the fact that putting up a giant Ten Commandments monument on government land and with the government’s apparent endorsement really should violate the Establishment Clause.  It is more than a little odd that the Supreme Court decided to rule on a relative side-show of an issue, but ignore the big Establishment Clause question that was staring them in the face.

I think, however, that Summum will probably be best remembered as a preemptive strike.  Recall that the Court recently agreed to hear an Establishment Clause challenge to a cross-on-a-hill monument errected in the middle of a federal land preserve.  Given that Justice O’Connor used to be the key fifth vote preserving the wall of separation between church and state, it is likely that the Court will use this cross-on-a-hill case to hold that Jesus is just alright with them.

If they do so, however, it would still have been possible to challenge the cross-on-a-hill under the free speech clause.  As it turns out, a Buddhist organization once asked to errect its own monument near the cross, but was turned down.  Before Summum, the federal government would have had to choose between allowing the Buddhist monument or taking down the cross.  Justice Alito’s fifth vote to destory the separation of church and state could have been undermined by free speech.

And since we certainly can’t have that, Summum should probably be read as cutting off this last-ditch means of saving church/state separation before it is invoked.

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