Legal Commentary

Supreme Court to Hear Argument on Religious Monument Case

By TChris

Michael Daniels, the Mayor of Pleasant Grove City, Utah, is dancing on a tightrope as he explains why the City accepted "an imposing red granite monument inscribed with the Ten Commandments" for display in a city park, but won't accept for display a monument that depicts the Seven Aphorisms of the Summum religion. A similar dance will be performed in the Supreme Court tomorrow as the Court hears argument about the constitutionality of that choice.

The First Amendment prohibits government from establishing a religion. A corollary to that prohibition is that government may not favor one religion over another. So why is Pleasant Grove City not improperly favoring Christianity's Ten Commandments over the Summum's Seven Aphorisms? Mayor Daniels' explanations are unconvincing.

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Only donations concerning the city’s history are eligible for display in the park as a matter of longstanding policy, he said, and only when donated by groups with a long association with the city. The Fraternal Order of Eagles, a national civic organization, donated the Ten Commandments monument in 1971.

"Long association" seems to be a relative term.

The local chapter of the Eagles ... had only been in town two years when it donated the Ten Commandments monument.

Groups having "a long association with the city" are those with which the city has chosen to associate. If the city has had a longstanding association with Christian groups but not with, for instance, Jewish or Summum groups, that should not entitle the city to discriminate in its choice of the religious viewpoint it displays on public property.

Nor is it reasonable to argue that the Ten Commandments have some relationship to the "city's history." The city may be dominated by Mormons who accept the Ten Commandments, but that's exactly why the First Amendment requires governments to be neutral on matters of religion. Otherwise, the religious majority would exercise a veto over religious minorities simply because the majority has a longer or stronger history in a particular jurisdiction.

Daniels got one thing right:

The donations, Mr. Daniels went on, are transformed when the city accepts them. “Monuments on government property become government speech,” he said.

Exactly. That's why the Ten Commandments, standing alone, amount to an endorsement of Judeo-Christianity. If that is the only religious viewpoint the city endorses, it has established a preferred religion in violation of the First Amendment.

It would be far better for municipal governments to get out of the business of displaying religious symbols. When a city chooses to do so, however, it must be open to displaying the symbols of all religions, without regard to the city government's view that some religions have been more important to the city than others.

A federal court of appeals ruled that Pleasant Grove City may not discriminate among religious viewpoints, and ordered it to accept the Seven Aphorisms monument. The Supreme Court should affirm that result. If Pleasant Grove City doesn't like it, the City should take down the Ten Commandments and get out of the business of displaying monuments to any religion.

There are some sticky legal issues in this case, including the Summum's reliance on the First Amendment's protection of free speech rather than the Establishment Clause. As this analysis suggests, that distinction might or might not make a difference. There may also be a question of fact as to whether the Ten Commandments monument is still on city property, although Daniels' statement above seems to admit that it is. My take on the case reflects my gut instinct about the important issues in the case, not necessarily the issues as they were framed to the Court.

More information about the case is available here.

Full post as published by TalkLeft on November 11, 2008 (boomark / email).