Thursday, February 26, 2009

The Ten Commandments and the Seven Aphorisms

Thanks to Reader aznew for passing this along. Importantly, this is a tough case for me to wrap my head around, so I hope I gave it justice.

The Supreme Court a couple days ago decided on a case in which Pleasant Grove City, Utah, declined to erect a monument on public space to the Summum religion, even though a monument to the Ten Commandments, among others, exists there (see full decision here). The Summun church wanted to erect a statue to the Seven Aphorisms. The city declined, stating that existing monuments were either fashioned to the history of the city or donated by people with strong historical ties to the city. Of note, the Summun adherents sued under the Free Speech clause of the First Amendment, curiously not under the Establishment Clause.

The Court unanimously agreed, however, there were multiple concurring opinions; basically, the Justices were split on their approach but unified in the basic decision, even with differing understandings of the scope and consequences of the decision. The Summun church argued that the space was a public forum, and they had their right to free speech; if the city took one monument with religious implications then the city must include theirs. Writing the majority opinion, however, Justice Alito stated that free speech pertains to speeches and leaflets in the public forum. Alito stated that the Summum church's free speech rights were not violated when the city rejected the request to erect a monument. As such, monuments on public property represent government speech, presuming, of course, that the Ten Commandments can be government speech without conveying a religious message. And, according to Alito, the meaning of a monument changes over time.

Several of the concurring decisions touched on the Establishment Clause:
The concurrences offered varying views about whether the decision foreclosed or left open a separate challenge to the Ten Commandments monument under the Establishment Clause.
Justices Scalia and Thomas believed that this decision forclosed any challenge with the Establishment Clause, citing Van Orden v. Perry in which many monuments on public land, even if one is religious, does not mean a governmental endorsement of religion. Justice Souter was not so sure, and said it would behoove the city to erect other monuments to not present the perception that the city was establishing religion.

The Baptist Joint Committee, a leading organization on the Seperation of Church and State, argues that the government cannot choose a favored religion and then erect a monument with that religion's precepts. They assert that the case is still open to an Establishment Clause challenge, and they point out that the Summun attorney was ecstatic that the Court handed them a new constitutional challenge on "a silver platter."

Why this wasn't initially handled under the Establishment Clause is beyond me, but it looks like the concurrences may give a small window into how the Salazar v. Buono case will be handled.


Darren Staley said...

My guess, Drew, is that the lawyers wanted two bites at the apple. Argue under Free Speech (which is an automatic loser in the case), get the case in the news, then re-file under Establishment.

Of course the possibility of SCOTUS granting cert to the same case under different standing is a longshot, imo.

Most likely the attorneys in the case felt their chances were slim and decided to gamble.

I should also say that per the previous thread, I looked deeper into Kennedy and his coercian test and have now been swayed by your (and I think it was Matt's) argument.

aznew said...

The actual opinion, I thought, explained what happened here. An Establishment Cause claim would not have worked, because the facts here are virtually similar to the facts in Van Orden v. Perry (at least according to Scalia's concurrence). The case would have been dismissed in pre-trial motions.

But, anyway, reading over this it seems that the more pressing issue for the Court was the extent to which this case defines the concept of Government Speech, not the Establishment Clause. That the EC was clearly on Scalia's mind probably reflects more the way his particular mind works -- he is often thinking many cases ahead.

Both here and in Van Orden, the Court goes to great lengths to argue that the presence of the monuments on public ground are non-religious. Thus, all the non-content reasons why these monuments exist -- they were donated with a non-religious purpose in mind, they have been there a long time, etc.

I suppose that can hold up in any particular case, but looked at more broadly, how long can various goverments permit Ten Commandment monuments on public land while finding reasons to reject monuments from all non-Judeo-Christian traditions before the establishment of religion is greater than the sum of its parts?

And at the end of the day, that is my main problem with it. The court seems determined to Constiutionally permit these monuments, but doing so seems to me to fly in the face of the common sense meaning of the Establishment Clause.

Look no further than the irony that advocates of the Ten Commandments monuments on public grounds base their positions on the fact that the Ten Commandments are not religious. Sure, five of them are secular laws, but five of them are clearly religious.

Drew said...

Great analysis aznew. I admit that I hadn't read the acutal decision, lazy blogging on my part. And the tension here, that you keenly point out, between the Free Speech Clause and the Establishment Clause is problematic. I was very uneasy with the fact that governmental speech can accept and decline any religiously implicated monument. Any one here know what is meant by governmental speech in terms of constitutional law?

aznew said...

Drew, I just wanted to address you question before this thread breathed its last, with the proviso that this explanation is based merely on what I read in this opinion and not on any independent knowledge or scholarship on my part.

Generally, the First Amendment has always required that is some speech is allowed on public property, then the government could not make any content based distinction on that speech. Thus, if a Republican was permitted to hold forth in a park, then so was a Democrat, or a Communist, or a facist.

With this line of opinions, however, the court is recognizing that when the government itself speaks, it is not the same as providing a public forum for all speakers. This actually seems to make some sense, even to a First Amendment absolutist like myself, since government could not otherwise operate. Imagine having to allow every point of view that wanted to to be represented in the National Archives because the Declaration of Independence is there.

Which is where this opinion gets into a danger area. It is arguing that the Ten Commandments, under these particular circumstances, somehow manage the trick of being both government speech and non-religious. I can, on the one hand, appreciate the argument intellectually, but I just don't know whether on a common sense level it is all convincing.

I may have that wrong, however, and I invate any of your readers who are actually well-versed in this area to correct me.

Drew said...

aznew, your explanation makes sense. The government needs the ability to speak for itself.

But, and correct me if I misunderstood you, how can we tell if monuments are erected in a public forum with respect to the Establishment clause, or if they are monuments erected as government speech? We seem to be blurring these lines unnecessarily.

That seems an interesting thread to needle ... but I am sure the answer to that question is coming down the pike.