Clearing up inconsistencies

The LA Times today has an editorial decrying the inconsistency of the Supreme Court regarding First Amendment religious monument cases, seen especially in the Summun adjudication. The editorial board agrees with the ruling, but the case could have been avoided if the Court was more consistent in its stands on religious displays:

The Supreme Court was right to hand down (though not on stone tablets) a ruling against a religious group that demanded that its precepts share space in a public park with the Ten Commandments. But the controversy never would have arisen if the court had adopted a consistent attitude toward religious displays on public property.

The editorial points out the potential problem with the Summun case:

Writing for the court, Justice Samuel A. Alito Jr. said the park wasn't a public forum. Rather, the Ten Commandments and other monuments in the park were "government speech," which needn't be balanced against other points of view. The principle is a sound one. No one would suggest that critics of President Obama's stimulus plan have a 1st Amendment right to commandeer White House printers to run off fliers stating their objections.

The problem is that the Ten Commandments convey an essentially religious message, albeit an older and more familiar one than the Seven Aphorisms. Alito was emphatic that the decision didn't undermine language in the 1st Amendment prohibiting a government "establishment" of religion. Still, the practical effect of the ruling is that a text sacred to Jews and Christians is displayed in a public park, but not the teachings of a minority religion.

The editorial ends discussing the pair of 2005 rulings on Ten Commandment displays (McCreary; Van Orden) and how these rulings, combined with the Summun case, will affect next year's Salazar v. Buono case, a case that could clear up the confusion and inconsistency:

In a pair of 5-4 decisions, the court in 2005 struck down the posting of the Ten Commandments in courthouses in Kentucky but upheld a display on the grounds of the Texas Capitol. ... The decision in the Texas case encouraged some religious activists to believe that the court was stealthily lowering the wall separating church and state. They may also take comfort from last week's decision. The way to dispel that impression is for the court to make clear that permissible "government speech" doesn't include endorsing a particular religion.

The court will have an opportunity to do that when it rules, probably next year, on a challenge to the constitutionality of just such a message: an eight-foot-tall cross in the Mojave National Preserve commemorating war dead. Californians who insist that such a display is innocuous should ask themselves how they would feel if the cross were replaced by the Seven Aphorisms.