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Our constitutional landscape: Inflatable rat has more free speech rights than a religion

No doubt, many of my atheist readers will think that this is the way things should be, but I think this is absurd. Let's dive in, shall we?

Earlier this month, the New Jersey Supreme Court ruled a ten-foot blow-up rat is a form of free expression entitled to constitutional protection. The rat had been and displayed at a 2005 labor event in Lawrence Township until police enforced a law that bans banners, streamers and inflatable signs, except those announcing grand openings.

Justice John Wallace Jr. wrote for the court: "The township's elimination of an entire medium of expression without a readily available alternative renders the ordinance overbroad." Justice Wallace continued by arguing, "Restrict free speech? Fugetaboutit! No disrespect."

Also in the realm of free speech, yesterday the U.S. Supreme Court handed down Pleasant Grove City v. Summum. The Court ruled a city government in Utah has the right to refuse the donation of a monument from a religious sect called Summum for display in a public park. However, that same public park has displayed a monument with the Ten Commandments for decades.

Read in context with Van Orden v. Perry, which upheld the display of the Ten Commandments in a public space, this ruling that creates a glaring loophole in our Constitution?s First Amendment, a loophole that manages to damage both the freedom of religion and the separation of church and state at the same time. By refusing to give Summum the same recognition as Christianity and Judaism, the Supreme Court has effectively created a hierarchy of religions with Summum near the bottom.

Justice Alito?s majority opinion argues that Summum followers have the right to hand out leaflets in the city park because that is private speech, but the erection of a permanent monument is government speech. If Justice Alito is correct, then the Ten Commandments monument in that same park has received government endorsement.

In 2005, the Supreme Court said that a Ten Commandments monument on the grounds of the Texas Capitol did not violate the Establishment Clause because the Ten Commandments ?have an undeniable historical meaning? in addition to its ?religious significance.?

That finding is little help to Summum, which was founded in 1975. Just because one religion is too young to have history on its side does not mean that it ought to be treated differently by its government. To do otherwise uses a religion?s age as a proxy for its legitimacy for inclusion in the fabric of American society.

This stunning conclusion by the Court leaves me disturbed both as a believer in the First Amendment, but also as a believer in God. If the Roman government had adopted similar logic in the second century A.D., my faith tradition, Christianity, might never have flourished. Today?s Summum might be tomorrow?s Christianity, and the government has no business meddling in this free and open marketplace of religious ideas.

This case may appear to be a limited-scope Free Speech case, but it smells like a major Establishment Clause and Free Exercise Clause problem. Look at this passage from Justice Souter's concurrance:

"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 agovernment to favor some private religious speakers over others by its choice of monuments to accept. Whether that view turns out to be sound is more than I can say at this point."

Whiskey. Tango. Foxtrot? Justice Souter is unwilling to say definitevly that the Establishment Clause means...something. This is a truly troubling statement. It is as if Justice Thomas has hacked into Souter's computer and published a fradulent opinion in Souter's name. Because if Souter endorses that view, his First Amendment views are identical to Thomas'. GULP!

Finally, you want some irony? Summum's lawyers made Jay Sekulow-style arguments concerning public forum jurisprudence. Guess who represented the Utah city before the Court? Jay Sekulow. See he believes in the marketplace of ideas, but only when it benefits conservative Christians or messianic Jews. The rest of our nations religions can go f*&^ off.

Full post as published by Supreme Dicta on February 26, 2009 (boomark / email).