A Ten Rock in the Park

The Supreme Court recently unanimously denied that a religious group had a free speech right to place a monument to its "Seven Aphorisms" in a town public park near where a monument to the Ten Commandments has stood for decades.  

Justice Samuel Alito, writing for the Court (PDF) in Pleasant Grove City v. Summum was at pains to say that the decision was limited to saying that Summum had no free speech right to place their presumptuous Seven Rock in the park near the dear old traditional Ten Rock. But Justice Antonin Scalia insisted, in a concurring opinion, that although Pleasant Grove City was "litigated in the shadow the First Amendment's Establishment Clause," there were no establishment clause implications to worry about. He was joined in his concurrence by Justice Clarence Thomas. Me thinks they doth protest too much, so let's stick a red flag on that point. We will return to it shortly.

While it makes sense, as the Court suggested, that public parks not be cluttered with monuments lest they start to look more like cemeteries than nice open spaces for baseball, frisbee, picnics, and public rallies, the justices sidestepped the obvious question of why should local governments be memorializing one religious doctrine over another in public places at all. (I know that they might take issue with that assertion, but that is how I see it.) From this distance, it seemed to take Alito a lot of fancy two-stepping to get to his claim that this is a case of "government speech" and that monuments of are a way that a community seeks to "identify itself." It is the latter part of this formulation that is interesting and concerning.

While that in itself might not be anything to get excited about, what troubles me is not so much the decision but Alito's main precedents, or at least his antecedents. Alito et al do not invoke the history of American religious freedom, the ongoing struggle for equality, why the establishment and free exercise clauses of the first amendment were necessary in the first place, or much about the role of the court as a guarantor of our rights under the Constitution. We hear nothing from Locke, Madison or Jefferson. And while such ancient philosophical statements may not be de rigueur -- they would be far more reassuring than the court's invocation of the way that kings and emperors "used statues of themselves to remind their subjects of their authority and power."

Pardon my populism, but as I recall we fought a revolution against cats like that.

Here is the full quote from Justice Alito, writing for the Court: (You can almost feel the majesty and the glory speaking to us down through the ages.)

Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statutes 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.

The justices continued:

Accordingly... Government decision makers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture.

The accepted monuments are meant to convey and have the effect of conveying a government message and thus constitute government speech.

Even when a monument features the written word the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways.

It suddenly occurred to me that all this sounded strangely familiar. Eventually, it came to me: In Through the Looking Glass, by Lewis Carroll, Alice encounters Humpty Dumpty, and the following exchange ensues:

"When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

`The question is,' said Alice, `whether you can make words mean so many different things.'

`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'"

Indeed.

That said, Alito et al acknowledged the "legitimate concern that the government speech doctrine not be used as a subterfuge for favoring certain viewpoints" and that "government speech must comport with the Establishment Clause." Problem is that the concern is legitimate because there is little wiggle room regarding the intentions of those who place Ten Rocks in public spaces, unless of course, one allows one's imagination to wander sufficiently to consider other interpretations and possible meanings after someone files a lawsuit; or the display is crafted to appear to stand up to current latitudinous judicial scrutiny.

But will there be judicial recourse available in the wake of Pleasant Grove City's apparent grandfathering in of majoritarian religious monuments? Apparently not. Alito suggests that if, in the unlikely event that a violation of the establishment clause could be inferred on an occasion such as this, the people can make their views known in the next election because pols, (stating the obvious) are "ultimately accountable to the electorate and the political process for its advocacy." Okay. But who will ensure the rights of minority religions, the local park commissioner?

This brings us back to Scalia and Thomas's less than reassuring rush to reassurance. They invoke the 2003 case of Van Orden v. Perry, in which "this Court upheld against Establishment Clause challenge a virtually identical Ten Commandments monument, donated by the very same organization (the Fraternal Order of Eagles), which was displayed on the grounds surrounding the Texas State Capitol. ... all the Justices agreed that government speech was at issue, but the Establishment Clause argument was nonetheless rejected ... because the Ten Commandments "have an undeniable historical meaning" in addition to their "religious significance."

Well, there you have it. History and majoritarian tradition may be unambiguously established under the rubric of government speech. (At least according to Scalia and Thomas.)

Justice David Souter was the only one to worry about the religious establishment implications of Pleasant Grove City: "But the government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause's stricture against discriminating among religious sects or groups. Under this view of the relationship between the two doctrines, it would be easy for a government to favor some private religious speakers over others by its choice of monuments to accept."

Souter's concern is borne out by the victory statement by Jay Sekulow, Chief Counsel for the American Center for Law and Justice, who represented Pleasant Grove City before the high court. "It's a significant decision that clears the way for government to express its views and its history through the selection of monuments - including religious monuments and displays."

What is particularly odd in all this is that there were two purposes behind the stone monument donated by the Fraternal Order of Eagles to Pleasant Grove City - and some 145 sites in 34 states (including the one on the grounds of the Texas State Capitol.) One was to promote public morality, (and a group of national religious leaders was assembled to find a version of Ten Commandments they could agree on for the purpose). But the whole thing was also part of a Hollywood publicity stunt intended to promote the film The Ten Commandments, starring Charlton Heston. At the dedication of the first Ten Rock at the International Peace Garden on the North Dakota-Canadian border in 1956, Heston, who played Moses in the film declared:

"The Ten Commandments have become the basis for the whole code of human law."

It is odd indeed, that a Hollywood movie promotion lengthens the shadow of the monuments of emperors and kings into our time. But it works for Sekulow. And we can expect that he will make the most of the opportunity to litigate further erosions of the wall of separation of church and state.