From the New York Times:
PLEASANT GROVE CITY, Utah — Across the street from City Hall here sits a small park with about a dozen donated buildings and objects — a wishing well, a millstone from the city’s first flour mill and an imposing red granite monument inscribed with the Ten Commandments.
Thirty miles to the north, in Salt Lake City, adherents of a religion called Summum gather in a wood and metal pyramid hard by Interstate 15 to meditate on their Seven Aphorisms, fortified by an alcoholic sacramental nectar they produce and surrounded by mummified animals.
In 2003, the president of the Summum church wrote to the mayor here with a proposal: the church wanted to erect a monument inscribed with the Seven Aphorisms in the city park, “similar in size and nature” to the one devoted to the Ten Commandments.
The city declined, a lawsuit followed and a federal appeals court ruled that the First Amendment required the city to display the Summum monument. The Supreme Court on Wednesday will hear arguments in the case, which could produce the most important free speech decision of the term.
This will be a challenge for the Supreme Court. It will have to come up with a way to reject the Summum church while plausibly claiming that it is not establishing the Judeo-Christian tradition as the official religion of the United States. It will in fact come up with something, which will, I predict, be a case study in intellectual dishonesty. Look forward to the good right wing justices telling us they are not doing all sorts of things they will in fact be doing.
The fact is, the constitutional basis for allowing religious expression in public spaces was always suspect. The claim, for instance, that a Nativity scene had lost all religious significance, was palpably absurd. The claims that Lake Grove is making to distinguish between the Ten Commandments and the Seven Aphorisms are equally absurd. The town makes one argument that is emotionally compelling but constitutionally barren:
The city, supported by more than 20 cities and states, along with the federal government, has told the Supreme Court that the upshot of affirming the appeals court decision would be to clutter public parks across the nation with offensive nonsense.
A town accepting a Sept. 11 memorial would also have to display a donated tribute to Al Qaeda, the briefs said. “Accepting a Statue of Liberty,” the city’s brief said, should not “compel a government to accept a Statue of Tyranny.”
In fact, a city making its public spaces available for private groups want to make oral speeches that oppose Al Qaeda would probably also have to make that same space available for those who support Al Qaeda, assuming anyone would have the guts to take that position. The permanent nature of the speech makes no difference. The problem the city faces is this: It can put up any monument it wants, so long as it pays for it, without being required to let private groups do the same. So, for instance, a city could put up a monument honoring the September 11th victims without letting an Al Qaeda supporter put up an answering monument. The Sunnum folks argue, quite reasonably, that it can accept a donation of a monument to the September 11th victims, so long as it expressly adopts the message of the monument as its own. The problem for the town is that it cannot expressly adopt the message of a religious monument as its own. Therefore, it follows that if it allows one religion to erect a monument, it must let all do so. Except, of course, it won’t follow, and we will see one more breach in the increasingly porous wall separating church and state.
