Monumental Terror
Jacob Sullum | November 11, 2008, 3:24pm
In a case the U.S. Supreme Court will hear tomorrow, followers of Summum, a 33-year-old sect that (per The New York Times) "contains elements of Egyptian faiths and Gnostic Christianity," are fighting for the right to erect a monument listing their Seven Aphorisms alongside a Fraternal Order of the Eagles monument displaying the Ten Commandments in a city park. Last year a panel of the U.S. Court of Appeals for the 10th Circuit ruled that Pleasant Grove City, Utah, violated Summum members' First Amendment right to freedom of speech by rejecting the monument they proposed to donate. The government "may not take sides in a theological debate," the church argues. Critics of the decision, including the Bush administration and various cities and states, say it would require governments that accept any donated displays on public property to approve virtually every other proposal, no matter how hideous, offensive, or idiotic. "Accepting a Statue of Liberty," the city says, should not "compel a government to accept a Statue of Tyranny." Tenth Circuit Judge Michael McConnell, who unsuccessfully urged the full court to rehear the case, has more in the same vein:
This means that Central Park in New York, which contains the privately donated Alice in Wonderland statue, must now allow other persons to erect Summum's "Seven Aphorisms," or whatever else they choose (short of offending a policy that narrowly serves a "compelling" governmental interest). Every park in the country that has accepted a VFW memorial is now a public forum for the erection of permanent fixed monuments; they must either remove the war memorials or brace themselves for an influx of clutter.
Significantly, the religious nature of the donated monuments is not relevant to the free speech question (though it would be to an Establishment Clause challenge). These cases happen to involve Ten Commandments monuments, but it could work the other way. A city that accepted the donation of a statue honoring a local hero could be forced, under the panel's rulings, to allow a local religious society to erect a Ten Commandments monument—or for that matter, a cross, a nativity scene, a statue of Zeus, or a Confederate flag.
The Summum church says governments that want to avoid such problems can decline to accept donated monuments (thereby creating a "public forum" where viewpoint discrimination is constitutionally suspect) or explicitly adopt the donors' message as their own (thereby transforming private speech into government speech). It does not mention park privatization as a third option.
In the June issue of reason, Jesse Walker noted how a similar controversy in Crossville, Tennessee, led to just the sort of monument proliferation McConnell fears.
Mad Max | November 11, 2008, 7:46pm | #
Here is the Tenth Circuit decision which started all the fuss. It’s the precedent for the case now being litigated against Pleasant Grove. Please note that the judges do not limit themselves to the “Establishment clause” issue. If that were the only issue, then the remedy would be simple – order the religious monument in question to be torn down, like the federal courts ordered with Roy Moore’s monument. Of course I have a problem with that, but it’s irrelevant to the 10th Circuit’s actual decision.
(Incidentally, do not assume that the decision requires religious neutrality. Quite the contrary. Far from excluding religious expression from public property, it gives a privileged status to wealthy religious groups which can afford to commission statues and monuments and place these statues and monuments in public parks, and then to litigate the issue with recalcitrant . The Summum outfit obviously has the money to do all these things. A local nondenominational church, or a private individual of the “spiritual but not religious” persuasion, does not have these resources, so in effect the 10th Circuit (in H&R terms) has “established” wealthy religions at the expense of non-wealthy ones.)
The 10th Circuit based its decision on the First Amendment’s Free Speech Clause, which protects speech on religious topics and speech on non-religious topics. In other words, the principles of the decision apply to privately-donated George Washington statues as well as to privately-donated Ten Commandments monuments.
To be sure, you could argue that the government is in the clear so long as it pays for its own George Washington statue instead of accepting it as a donation from patriotic citizens. Similarly, the 10th Circuit decision does not apply to the giant
Our Lady of the Rockies statue overlooking Butte, Montana (caution: may cause apoplexy in secularists). This statue was *not* solely financed through private donations, as their Web site explains:
“On December 17, 1985, a NCh-54 Sikorsky Sky Crane lifted the statue in four sections to the top of the Continental Divide. The team that deftly executed the delicate operation were from the Army National Guard's Army Aviation Support Facility, the 137th Aviation Co. from the Reno-Stead Airport in Nevada.
“Supported by the Montana National Guard, the U.S. Army Reserve from Butte, and teams of civilian workers, the final head section was placed atop the statue, while thousands watched and honked their car horns and rang church bells throughout the valley, at 4:07 pm Mountain Standard Time on December 20, 1985.”
So you see, if a statue or monument was erected and constructed by the government, at taxpayer expense, it *doesn’t* come within the rationale of the 10th Circuit’s decision.
In contrast, if a government accepts a privately-donated Washington statue, financed solely through private contributions, then it will be hard put to defend itself in a lawsuit by the Loyalist Association, seeking to erect a Benedict Arnold statue.
". . . RC may disagree with me, but I still contend that the entire point of having a "private" donated monument was an attempt to evade the Establishment Clause; an attempt which has now blown up in the government's face."
Many of these privately-donated Ten Commandments monuments were donated *before* the federal courts had "discovered" that religious monuments violated the First Amendment. Therefore, there was nothing at that time to "evade."
Mad Max | November 12, 2008, 10:29am | #
RC Dean,
You only quoted *part* of the Conclusion of the opinion. Here it is in full:
"III. CONCLUSION
"The Free Speech Clause of the First Amendment compels the City of Ogden to treat with equal dignity speech from divergent religious perspectives. On these facts, the City cannot display the Ten Commandments Monument while declining to display the Seven Principles Monument.
"For the foregoing reasons, we (1) AFFIRM the district court ruling in so far as that ruling granted summary judgment in favor of the City of Ogden as to Summum's Establishment Clause claim and (2) REVERSE the district court ruling in so far as that ruling granted summary judgment in favor of the City of Ogden on Summum's Free Speech Clause claim. We REMAND for further proceedings consistent with this opinion."
Ogden (sayeth court) created a limited public forum for religious monuments, so it had to allow diverse religious perspectives. Likewise, if it accepted a Washington statue, the city would have created a limited public forum for historical expression, or discusson of historical figures, or in any event for Washington and Arnold.
If you go upthread to the article, you will see this confirmed:
"Significantly, the religious nature of the donated monuments is not relevant to the free speech question (though it would be to an Establishment Clause challenge). These cases happen to involve Ten Commandments monuments, but it could work the other way. A city that accepted the donation of a statue honoring a local hero could be forced, under the panel's rulings, to allow a local religious society to erect a Ten Commandments monument—or for that matter, a cross, a nativity scene, a statue of Zeus, or a Confederate flag."
Reason on Facebook
Reason on Twitter
Reason on YouTube
Reason RSS
