Government Can Favor A Religion — If It’s Carved in Stone February 25, 2009

Government Can Favor A Religion — If It’s Carved in Stone

Richard Wade here.

The U.S. Supreme Court ruled unanimously today that the city of Pleasant Grove, Utah does not have to allow a little known religious group called Summum to install their privately funded monument in the city park, despite the fact that there is already a Ten Commandments monument there.

From the New York Times: (emphasis mine)

The case is of keen interest to local and state officials across the country for several reasons. Not least is that officials have been concerned about what kinds of markers and monuments, if any, they might be forced to allow in public areas. And while the case of Pleasant Grove City v. Summum, No. 07-665, involves religion, the real issue was free speech, not the separation of church and state.

The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable.

But Justice Samuel A. Alito Jr., writing for the court, said the arguments embraced by Summum were not really the right way to look at the case. The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park, Justice Alito wrote.

“The Free Speech Clause restricts government regulation of private speech,” Justice Alito noted, referring to a clause in the First Amendment. “It does not regulate government speech.”

While a government entity is quite limited in its ability to regulate or restrict private speech in traditional public forums, like parks, the government entity “is entitled to say what it wishes,” Justice Alito wrote, citing earlier Supreme Court rulings. If the people do not like what their government officials say or stand for, they can vote them out of office, he wrote.

So, what do you think?  Is this not at all a church/state issue but only a free speech issue?   The court has said that a local government cannot limit the free speech of minority groups in such forms as standing on a soap box or handing out fliers, but it can exercise its own freedom of speech by picking and choosing the views it favors in monuments. So,  is it spoken words or paper = free and unrestricted, while  marble or cement = government favored only?  What do you think the ramifications of this will be? Will, for instance, a city or state government’s  “free speech” and therefore its discretion about religious displays spread beyond small town parks to government buildings?  Will government’s ability “to express itself” enable it to require one kind of religious ritual over another in government proceedings?

So I guess the large marble statue of the Flying Spaghetti Monster that I’m carving will not be installed in my home town central park any time soon.

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  • Tyro

    That’s appalling. The whole point behind church-state separation and constitutional rights is to prevent just this sort of tyranny of the majority. “Vote them out of office” my ass. Yes the government can speak, but it has tighter regulations than individuals because it has more power. It represents the people, all the people.

    I’m horrified that this passed and worse, it was unanimous. Disgusting.

  • Bill

    It seems to me that “strict constructionists” read the Constitution in much the same way that “literalists” read the Bible.

  • happycynic

    Well, the tack they’re taking is that government putting something on government property, or regulating what goes on it, means the government is “speaking” and endorsing whatever gets set up. This is pretty much how atheists can argue that government displays of religious paraphernalia endorse religion. Therefore, on the free-speech aspect, putting up somebody else’s monument is basically you speaking their words. The government has the right to speak other’s words or not, and so it’s within it’s rights to deny the statue… just looking at free speech.

    Looking at it in the perspective of religious freedom, and considering that allowing others to post on public monuments was ruled to be government promotion of whatever they put up, the government is still within its rights to deny the Summum’s their monument–in fact, they are obligated to, because the state cannot promote religious causes. Which by the same token means the ten commandments are illegal for them to display!

    So in the end, i think somebody could use this court ruling to get the ten commandments out of that park. By ruling that the government takes the position of whatever monuments it allows to be erected on it’s property, the court is also saying that the city is taking a judeo-christian position, which is unconstitutional.

  • mikespeir

    It’s still government deciding who it will allow to speak. I can see not wanting to clutter the park with a bunch of monuments, but maybe it should just get rid of any not applicable to all citizens.

  • I agree that the government entitity should be free from being forced to display any monument, having the freedom to choose what it wants displayed in its park…

    as long as it doesn’t display anything that violates the separation of church and state. Which in this case, it obviously does.

  • This is a tricky one for me because it seems to sit in the fuzzy region between two competing rights. One is the right of the town government to not allow a monument to be placed on government property. The other is the the right of citizens to be free from religious propaganda from their elected officials.

    Imagine that the KKK wanted to erect a monument, using private funds, to white pride. I can’t say I’d blame the town for not wanting that in a public square (assuming they wouldn’t….this is Utah….) I think the town council would be completely in its right to deny the KKK its request.

    But here is a case which has the town favoring one religious message over another and clearly violates church-state separation. It seems that the most rational course of action would be to not have the 10 commandments placed there either. But since when has rationality ever entered into this debate….

  • Tyro

    I think it’s a good thing that they can’t be compelled to display a monument. However, once they start displaying religious monuments then they’re either endorsing that religion or they should be open to displaying all religious monuments. I’d rather they displayed none, but displaying just one is wrong.

  • The fact that it is an unanimous decision indicates that the ruling is probably on much more solid ground than the news seems to be indicating. When lawsuits such as this are discussed int he media, they are often discussed in terms very different than how they were actually decided in the court. It may well be the case that the court would rule in favor of removing the 10 Commandments monument IF that had been the case brought before it, but as that was not the case brought before it, they did not rule on it.

    Also, there may be some information relevant to the decision that isn’t coming through to the public due to disinterest in the media, and if that is the case, then it is possible that the perceived violation of the seperation of church and state is not actually an issue at all in the case as it was presented to the court – remember, the court rules on what they are presented with, not outside issues that they would like to address.

  • This is bonkers. Yes the government can “express” itself, but not in such a way that implies an adherence to theism or the sanctification of the fictional laws of Yahweh. Unreal.

  • MV

    I read this as well and I agree that the monument should not be placed, but I disagree as to why.

    A public park is owned by the government, just as a courthouse is. The Ten Commandments have no business being there, much less the Seven Aphrorisms.

    I would have barred any religious monuments in or on any government owned (excepting memorials and museum). Otherwise, you imply government support of religion, which is not allowed.

    There are free-speech issues here, but they should be ruled in favor of more free speech as long as it does not conflict with the seperation of church and state. For instance, they can post what they want anywhere they want it as long as it is not on or in government owned property.

  • All this means is that the Summum people made a poor argument before the courts. They chose the wrong part of the constitutional ammendment upon which to hang their hat.

  • “All this means is that the Summum people made a poor argument before the courts. They chose the wrong part of the constitutional ammendment upon which to hang their hat.”

    Precisely. I intend to try to read more on this subject, I suspect that the notion that this is a sign of the government favoring one religion over another is a snap judgement that reflects our own concerns and media presentation more than it represents the actual court decision.

  • It’s complicated, but I’m with CosmicThespian that it would probably make the most sense to not have either monument.

    If you’ve never heard of Summum, read up on them – – it’s some weird stuff. They’re all into nectar and mummification.

  • Miko

    The interesting issue here is that Pleasant Grove is trying to have things both ways: when the monument was installed, it was private speech and so not an Establishment Cause violation. However, after it was installed it became government property and so government speech and so did not create a limited public forum.

    By firmly establishing that the monument is government speech, the Supreme Court (probably; though you’d need to read the decision to be sure) just laid the foundations for another group to sue to have the monument removed entirely on Establishment Clause grounds. So, in a sense this wasn’t necessarily a bad decision from the standpoint of freedom of religion.

  • I agree with Paul’s assessment. A different approach would have produced different results.

    I’ve followed this case closely (I live in Salt Lake) and wondered if they don’t endorse any new moment from another religion, does this mean they must remove *any* moments that are already there or is there some sort of grandfather clause applied?

  • Courtney

    In regards to this case, I’ve heard it said that if the town won by getting the ten commandments monument declared government speech, they would be right back in court, this time on establishment clause grounds.

    Chief Justice Roberts, during the oral arguments:

    Mr. Sekulow, you’re really just picking your poison, aren’t you? I mean, the more you say that the monument is Government speech to get out of the first, free speech — the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause. If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking — supporting the Ten Commandments?

    Ed Brayton at Dispatches from the Culture Wars has written extensively about this case; here’s a search that should find most of his articles.

  • cathy

    I would like to see the majority opinion and see if the plantiff argued that this was a free speech issue instead of arguing establishment of religion. The Supreme court can rule differently in two cases with the same facts but different legal issues argued. Arguing this case as a violation of free speech is a bad legal argument, arguing it as a violation of the establishment clause and the fourteenth amendment would be much better.

  • flatlander100

    In an earlier similar case in Utah [in Ogden], Summum made their argument, I think, on 14th Amendment grounds [the “equal protection” clause]. And they won the case. As I recall, the decision went something like this: Ogden City could ban privately erected religious monuments in its park, or it could permit them. But it could not permit some and ban others on the basis of the content of their message. Whatever rule Ogden applied must be applied equally to all applicants to erect private religious monuments in the park. I wonder if Summum made the 14th Amendment argument in this?.

    In any case, as I read the decision, all the court decided was that the town could not be forced to erect a monument of any sort in a public park that it did not want to erect. It did not treat the question of whether the town could be compelled, on constitutional grounds [either equal protection or separation grounds], to remove a religious monument it did want to erect.

    I suspect the town has not seen the end of the litigation on this yet.

  • Bart Mitchell

    This is a tough one for me. As an atheist, I would like to see christianity abandoned in our public sphere.

    I also see a need to respect old customs. If I lived in Egypt, I wouldn’t petition to place atheist monuments next to statues of Anubis. If I lived in Rome after the fall of the Catholic Church (god willing) I wouldn’t want to see the buildings torn down.

    In a perfect world, people would walk by that 10 commandments monument and make comments like “People used to believe in a man who received these laws on two stone tablets. It is one of the early codified moral sets of the ancient world. Did you know that it was preceded by the code of Hammurabi by over 800 years?”

    Allowing the placement of any/all monuments would turn the park into a battle ground of ideas, not a restful place for people to come relax. Allowing the other religious tombstone would have been a mistake.

  • Richard Wade

    Not knowing the details of the case, I wonder if Summum went the route of the free speech issue because they wanted to actually get their monument installed. If they used the church/state separation angle, they might have foreseen that Pleasant Grove would end up having to remove the Ten Commandments monument, and nobody would get anything they want. (Except for us damn atheists. Hehehehehe.)

    I agree that this actually seems to put Pleasant Grove in the cross hairs (no pun intended, but not apologized for either) for an eventual Separation challenge.

    Every town has historical heroes and inspiring folk legends. It puzzles me why they don’t make graceful and interesting monuments to such figures the centerpieces of their charming central parks instead of a visually ugly and constitutionally inappropriate double stone tablet.

  • Mark

    Its always interesting to watch the courts wrestle with opposing rights and values. The historical value of a monument is one such issue. How long would a monument of the ten commandments have to stand in a park or be chiseled on the side of a government building before it became more historical than religious? This is one of the issues that the courts are struggling with. Some nutball group who invented their religion last year can’t come into court and demand the removal of a monument of the ten commandments that has been standing in a park for over a hundred years. Did the article say how long that monument had been there?

  • stogoe

    If you’ve never heard of Summum, read up on them – – it’s some weird stuff. They’re all into nectar and mummification.

    Is it really any weirder than ritual cannibalism?

    No. The answer is no. Summum is only ‘weird’ to you because you’re not constantly exposed to Summum cultural programming like you are with Christianity.

    As for the decision, if public monuments are government speech, then the next step is to take out the Ten Commandments statue via Establishment Clause.

    Mark, I’m of the mind that the history of an offense doesn’t matter, except to underline how long it’s been allowed to stand. Ten years, a hundred, the government cannot install Christianity (or any other religion) as the default religion of the US, no matter how much they want to. And I won’t let it slide just because they’ve gotten away with it so far.

  • Bart Mitchell

    Mark, it was installed in 1971.

    Since that was the year I was born, I hesitate to declare that the monument is ‘ancient and well established’.

  • Miko

    Mark: I think that the historical argument gets overplayed. Now, I’m not in general in favor of wanton destruction. However, the statue of Saddam got pulled down fairly quickly after he lost power.

    Likewise, I think that if an old pro-slavery monument were discovered somewhere in the U.S., it’d probably be removed pretty quickly without regard to how long it had been there. Perhaps we haven’t reached a golden age of liberty where the same argument will be applied to the Ten Commandments (yet), but since both have been the source of untold misery and oppression, the principle is nonetheless the same.

  • I know nothing about Summum, but I have to say legal stuff is tricky. Often it’s logical, but it’s a very specific logic. Like people have said, given this ruling, a possible next step would be to bring a case to the court to have the Ten Commandments removed. It’s an issue of consistency, I believe. The Government doesn’t have to allow the Summum statue in the public park. Free speech only covers the ability of Summum to erect its own statues on its own ground. But if they want to deny the Summum statue on public property, then yes, they should remove their own, because the message is that public displays of religion are not acceptable. If, however, they want to display their own religion, then they should not feel offended when other groups want to do the same. They should allow it for the sake of freedom (provided that it doesn’t cross other lines of decency, i.e. the KKK) and to show that they are confident enough in their own religion that it won’t be threatened by the presence of another.

  • This seems incoherent to me. How on earth does a government or indeed any corporate entity (one comprised of groups of individuals) have a “power to express itself”? What does it mean to say that a government expresses itself?

    It seems to me that as a collective of individuals, rather than as individuals themselves, governments/corporate entities cannot have any “powers of expression”. They have only police powers, i.e., the power to limit or promote the expression of others. Alito seems to be claiming something along the lines of “the government has a right to…” which is prima facie absurd.

  • Reginald Selkirk

    And while the case of Pleasant Grove City v. Summum, No. 07-665, involves religion, the real issue was free speech, not the separation of church and state.

    Apparently there is only one “real issue,” and I’m not the one who gets to decide what it is.

  • Richard Wade

    Apparently there is only one “real issue,” and I’m not the one who gets to decide what it is.

    That is exactly right. The issue decided by the court is determined by the grounds cited in the lawsuit brought to the court. If the plaintiffs don’t bring up a different issue, the Justices aren’t going to do it for them.

    If someone wants the Ten Commandments monument to be challenged on the church/state issue, they have to bring their own lawsuit focusing on that. Unfortunately, recent Federal court decisions have indicated the attitude that to even be considered, such lawsuits have to show “standing,” meaning that actual harm has been done to the plaintiffs, rather than to take the case simply because the government in principle should not be endorsing religion. In other words, federal, state and local governments can clean their nether orifices with the Constitution all they want until somebody can show they have actually been harmed. The principle of the thing by itself does not have any weight in the eyes of the court.

  • Roe

    For a more intimate perspective on how fast the right is moving to misinterpret and abuse this decision feel free to read this post (Link to Bryan Fischer’s website) by Bryan Fischer, a religious leader here in Boise Idaho.

    He’s trying to use this ruling to get a monument to the 10 commandments put back into a public park. The monument was removed a few years back despite a lawsuit that was filed by Bryan Fischer and his gang. They lost the suit and spent 4 years trying to avoid paying the fines associated with losing the suit.

    So far it looks like Boise’s Mayor is doing the right thing by not giving Bryan the time of day but that could change.

  • The Summum lawyer is going to file an amended lawsuit to remove the 10 commandments monument.

  • christi

    Fingers crossed the court upholds the Constitution in this case.

  • I think the Court is ignoring the Establishment Clause, which says that government basically cannot endorse a religion, but the Constitution says nothing about ‘government speech.’ If the government has some kind of right to express itself against the limits of its power to establish a religion, this is new to me. There should be NO COMMANDMENTS and NO APHORISMS either. These Summum crazies have only proven how ridiculous all religion is. At least it’s obivous to me and other reasonable people that Summum is really much the same as any other religion — ie, crazy.

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