Like many American towns, Pleasant Grove City, Utah, prominently displays a statue of the Ten Commandments in the town square. Summum, a Gnostic religion headquartered in Utah, wishes to have a similar monument to the Seven Aphorisms of its own religion displayed there as well. In the case of Pleasant Grove City v. Summum the Supreme Court will decide whether or not the City may refuse to display Summum's statue.
The first words of the First Amendment are: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Supreme Court has ruled that these provisions mean that the government must be neutral with respect to religion – it may neither advance nor inhibit religion. For example, while children have the right to pray in school, the government is not allowed to have public school teachers lead the children in prayer. Similarly, while the public schools may not teach religious doctrine such as the story of Creation from Genesis, the schools are also prohibited from teaching that God does not exist. Essentially, while the government has the right to express itself on every other subject, it must remain silent about religious matters, while at the same time allowing individuals and private organizations to freely express their religious opinions.
When can the government display religious symbols? If the setting makes it clear that it was not the intent of the government to convey a religious message then these kinds of displays are acceptable. For example, in Allegheny County v. A.C.L.U. (1989) the wintertime display of a Christmas tree coupled with a menorah outside a public building was upheld by the Court as a celebration of the holiday season, but the Court declared that a huge nativity scene situated on the interior steps of the county courthouse was unconstitutional.
Three years ago in the case of Van Orden v. Perry (2005) the Supreme Court upheld the display of a Ten Commandments monument on the grounds of the Texas State Capitol on the ground that the statue was a part of a historical display that included a World War II memorial, a statue of a Confederate soldier, and more than a dozen other monuments.
The Pleasant Grove City case will turn upon what the Supreme Court believes that the city's intent was in erecting and maintaining the statue of the Ten Commandments. If the Court finds that Pleasant Grove City's Ten Commandments monument is displayed solely for historical or artistic reasons, then it is likely that the Court will uphold the right of the City to decide whether to accept or reject other statuary such as Summum's monument to the Seven Aphorisms, just as a municipal museum for historic or artistic reasons could elect to display a Madonna by Giotto and not an image of Buddha or Vishnu.
The trouble is that history or aesthetics may not be the real reason that the City chose to display the Ten Commandments. If the City admits, for example, that the monument to the Ten Commandments was erected because it reflects the views and beliefs of the majority of the local population that comes perilously close to admitting that the choice of this particular statue was religiously motivated. Or if the City argues that it simply allowed a private organization to erect the Ten Commandments monument in the park then it raises the question of why another private organization is being prevented from displaying its monument.
That's the consequence of allowing religious icons or prayers in government settings. At some point minority religions will also want to have their sacred objects displayed on the town square or have their prayers recited by public school teachers. If the government is permitted to promote the views of majority religions it would be difficult under the Constitution to deny minority religions the same opportunity. At that point, government expression of religious views would become a political football, and elections would be fought over which specific religious expressions would be embraced by the government.
Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law. This is the first in a series of essays describing constitutional law cases which will be decided by the Supreme Court in the coming year.
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" At some point minority religions will also want to have their sacred objects displayed on the town square or have their prayers recited by public school teachers."
That seems to be the crux of the matter.
However, this…
"If the setting makes it clear that it was not the intent of the government to convey a religious message then these kinds of displays are acceptable."
….surely seems to me to be the crux of the matter for those who argue for displaying religious symbols….i.e….."to convey a religious message", and therefore, should be rejected. To religionists, there is no distinction. Religious symbols are meant to convey a religious message, otherwise those symbols have no meaning. Sure, historical perspective and national traditions can be used as a fig-leaf, but why do we need to shroud the obvious…when it's….obvious?
Thanks for this excellent post.
I agree with The Reverend…."Religious symbols are meant to convey a religious message, otherwise those symbols have no meaning."
If a group wishes to display 'religiously' themed items on nonpublic lands, then good for them. I tend to question the judgement of any 'public' entities that allow even potentially controversial items displayed on their turf. It is time for exercising more consistancy and common sense with issues that are 'obvious' to the general public.
Unfortunately, Dan, common sense has long since been abandonned in our First Amendment jurisprudence. We have strayed far from both the language of the First Amendment and its origonal meaning.
RE: "Unfortunately, Dan, common sense has long since been abandonned in our First Amendment jurisprudence."
Has that been a good thing? Since when has evolving jurisprudence become an end itself instead of a means for protecting (the rights of) the citizens?
Lack of common sense led, in large part, to our recent financial downfall too. At what point will the lawyers, lenders, and legislators realize that common sense usually trumps fantasy, dreams, and greed in this world? At least it does in the long run…
The idea of "evolving jurisprudence" or "evolving standards of decency", is one of the hallmarks of judicial overreach of our time. Such theories of constitutional interpretation have turned the Supreme Court into a legislative branch of the government. They allow a majority of the justices to make policy (or, more likely, overturn the policy adopted by the the people's elected representatives). And people wonder why there is a culture war?
The Ten Commandments monument contains an inscription stating that it had been donated by the Fraternal Order of Eagles and it is decorated with the Eagles' insignia. One of the issues in this case is whether the monument is "government speech" or "private speech." If it is private speech, then it raises the question of whether the government is opening up a "public forum" but then restricting access to that forum on the basis of the content of what people have to say – in essence, censoring private speech. At oral argument, http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-665.pdf, the city's attorney contended that the monument constituted "government speech" and not private speech because the government owned both the monument and the land on which it sits. At oral argument Justice Kennedy asked the City's representative, "Suppose the government says, 'We will accept ownership only if we agree with the message.'"? Justice Souter added: "The government says, 'Okay, we'll take the Eagles monument. We will not on identical terms take the Summum monument because we disagree with the message. … Why isn't that a First Amendment violation?"
The attorney for Summum argued that the Ten Commandments monument was not "government speech" because the city had never formally adopted a resolution adopting the monument as the expression of its own sentiment. When asked why the city had not taken this simple step, she replied, first, that doing so would invite a direct challenge under the Establishment Clause, and second, that this particular monument did not contain the Mormon version of the Ten Commandments, and that therefore there would be resistance within the city to formally adopting it.
Essentially the attorney for Summum argued that the city could have adopted a content neutral reason for rejecting the monument to the Seven Aphorisms, but that the city could not reject Summum's monument simply because it disagreed with its message.
On the whole, it does not appear from the transcript of oral argument that Summum persuaded a majority of the justices that this was an example of a city restricting private speech in a public forum.
RE: "One of the issues in this case is whether the monument is "government speech" or "private speech." " AND "The attorney for Summum argued that the Ten Commandments monument was not "government speech" because the city had never formally adopted a resolution adopting the monument as the expression of its own sentiment.
I would argue that the monument IS "government speech", AND that it violates the Establishment Clause for the following reasons:
A) It was accepted 'as is' and displayed without requiring any alterations
B) The Ten Commandments are NOT part of the FOE official logo/insignia
C) The Ten Commandments ARE a well known biblical/religious expression
D) The monument, with the religious portion intact, was displayed as a non- temporary addition to a public park
E) By doing so, and even without a formal resolution, the PG City government did in fact endorse the inclusion of a religious symbol in a public setting that, as a park, would not be expected to contain such an item.
Therefore, since this monument is clearly not part of a temporary seasonal or well-defined historical display; or simply artistic in nature, evidenced by the 'advertisement' for the FOE; the religious nature of the monument clearly exceeds the limits of the Establishment Clause and provides a good reason to require the removal of the monument from it's public setting.
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