November 13, 2008

Religious monuments, government speech, Justice Breyer's "freak out" test, and Justice Stevens's Vietnam memorial hypothetical.

Dahlia Lithwick covers the oral argument in Pleasant Grove City v. Summum, the case about whether a city that has put up a donated 10 Commandments monument in a public park is stuck having to put up some other donated monument. (Here's the PDF of the transcript.) It shouldn't matter that the other monument represents a weird religion, should it? "Weird" is Lithwick's word:
With its pyramids, and mummification, and nectars, and hairless blue aliens, Summum is an existential stew of transcendental Gnosticism and particle physics: Isaac Luria meets Star Trek Voyager.
Lithwick quickly quips that it's always the other person's religion that seems weird, while your own religion seems "rational." But the reason the 10 Commandments seem more acceptable than the Summum "Seven Aphorisms" is not so much that we are not members of Summum -- maybe a few of you are -- it's that the 10 Commandments are a component of a long tradition that is elaborately integrated into the history of the United States.

That is the reason -- or part of the reason -- why the Supreme Court found -- in Van Orden v. Perry -- that it didn't violate the Establishment Clause for the state of Texas to have a 10 Commandments monument on its state capitol grounds. By the way, the 10 Commandments monument in Pleasant Grove is basically identical to the monument in Van Orden. The context is a little different though, in that the Van Orden monument has been where it was for more than 40 years, and the Pleasant Grove 10 Commandments only dates back to 1971. Also, the city of Pleasant Grove was founded by Mormons, and the 10 Commandments monument isn't the Mormon version of the 10 Commandments, so it doesn't reflect the history of the city in quite the same way.

Back to Lithwick:
In 2003, Summum's founder, Summum "Corky" Ra, requested permission to donate a monument to the park celebrating the Seven Aphorisms upon which their beliefs are based. (The Seven Aphorisms are, in brief: the principles of psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender.) Summum holds that these aphorisms were revealed to Moses at Mount Sinai, but he demurred because his people were not yet ready for them. The Decalogue was the rewrite.
Not surprisingly, the city doesn't want this monument in its park. But if they accepted the 10 Commandments monument from the donor (the Fraternal Order of Eagles), does it violate freedom of speech to reject the message Summum wants to express? Is it unconstitutional viewpoint discrimination to favor the Judeo-Christian speech -- in monument form -- over the similarly stone-carved Summum speech?
Summum isn't before the court as a religion case. It was brought as a free speech case, and, as Jay Sekulow of the American Center for Law and Justice learns about three minutes into oral argument this morning, if he wins this case as a result of the court's free speech jurisprudence, he will be back in five years to lose it under the court's religion doctrine. The more zealously the city claims ownership of its Ten Commandments monument, the more it looks to be promoting religion in violation of the Constitution's Establishment Clause.

Chief Justice John Roberts puts it to him this way: "You're really just picking your poison. The more you say that the monument is 'government speech' to get out of the Free Speech Clause, the more you're walking into a trap under the Establishment Clause. … What is the government doing supporting the Ten Commandments?"

Sekulow replies that the display is 100 percent Establishment Clause kosher in light of [Van Orden and its companion case McCreary]. Justice Stephen Breyer was the deciding vote in each of those cases, which—read together—stand for the current Third Aphorism of Religion Cases: Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer.
Is that really the law, you may ask, or is that some kind of joke? Here's the post I wrote about the cases at the time. Breyer's opinion was the deciding vote, and he eschewed any clear rule, opting instead for what he called called "legal judgment," "tak[ing] account of context and consequences measured in light of" the purposes of the religion clauses -- promoting tolerance and freedom.

Lithwick's line -- "Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer" -- is a joke with some truth to it -- and also some serious inaccuracy. It assumes a conclusion that is in issue: that the monument is a "government establishment of religion." And Breyer seems like too cool a character to be "freaked out" by anything. Plus, he votes against government religious expression much more than we'd see on anything like a "freak out" standard. (See McCreary.) It would make more sense to say Breyer permits government religious speech when the idea of courts stopping it freaks him out.

Lithwick notes that Breyer signaled his dissatisfaction with the doctrinal rules -- the "artificial kinds of conceptual framework." Breyer sent very similar signals at oral argument in Van Orden, which I noted at the time.

But it looks as though there is room for a clear rule here:
Justice Samuel Alito observes that there is a difference between free speech, in the classic sense of protests, leafleting, and speech-making, and hauling around massive granite monuments, then demanding public-forum analysis be applied to "the Washington Monument or the Jefferson Memorial." Joseffer says that when the government is "acting as curator," it can engage in viewpoint discrimination. In other words, it can choose the speech. "You can't run a museum if you have to accept everything, right?" says Scalia.
When government takes on the role of curator, it is no longer a question of the free speech of the original speaker. The government that chooses or rejects objects for presentation in one of its own displays is exercising its own speech, and it doesn't violate anyone else's free speech rights. It might violate the Establishment Clause, but that is another question.
Pamela Harris has 30 minutes to represent Summum, and Roberts hits her with the hypos: "You have a Statue of Liberty; do we have to have a statue of despotism? Do we have to put any president who wants to be on Mount Rushmore?"....

Even the most doctrine-loving justices seem to be bothered by the practical problem of city parks becoming cluttered with hate monuments, weird stuff, and, eventually, rusted-out cars.
I think it's pretty obvious that the city will win as the Justices (like Scalia) who support free speech for the government will have the support of the Justices (like Breyer) who look at real-world consequences and think practical thoughts.

But there still should be some hand-wringing over the one hypothetical that really did freak out everyone -- well, not Scalia, but almost everyone: What if the United States had decided to express itself by excluding the names of gay soldiers from the Vietnam memorial? Justice Stevens posed the hypothetical, and the Justices struggle with it. From the transcript:
JUSTICE BREYER: That seems to be the problem here. And what I have in this is the -- the problem I have is that we seem to be applying these subcategories in a very absolute way. Why can't we call this what it is -- it's a mixture of private speech with Government decisionmaking -- and ask the question, as we do in election cases, is the restriction proportionate to a legitimate objective? I know how you're going to answer that question. You're going to say: Of course, it is. But what's interesting me is, are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter? The answer to Justice Stevens's hypothetically is: Of course the Government can't do that because it's disproportionate.

JUSTICE STEVENS: I didn't get the answer. Did you --

MR. JOSEFFER [representing the United States, as amicus curiae]: Yes, the Government can choose to memorialize who it wants on the mall. When the Government is -- now, to be clear, that's under the Free Speech Clause.

JUSTICE BREYER: So what is the answer to the -- what is the answer to Justice Stevens's hypothetical? What is the answer to the homosexual hypothetical? What is the answer?
Breyer seems to be verging on freak-out mode there.
MR. JOSEFFER: The only question --

JUSTICE BREYER: Because that tests the theory.

MR. JOSEFFER: Well, as a matter of the Free Speech Clause, there are no limits on the Government's ability to speak freely. Under the Equal Protection Clause, the Establishment Clause, perhaps the Due Process Clause, there might be thought to be independent checks on the Government's speech. But the Free Speech Clause, whatever else it does, does not prevent the Government from speaking freely.

JUSTICE SCALIA: It seems to me the Government could disfavor homosexuality just as it could disfavor abortion, just as it can disfavor a number of other things that in -- in many States people are free to do. The Government can disfavor all of it, can't it?

MR. JOSEFFER: The Government would be powerless to do anything if it cannot first formulate and then express its own viewpoints....

JUSTICE KENNEDY: Does the law always require us to adopt an all-or-nothing position? Aren't there some extreme cases indicated by the hypothetical where the First Amendment does enter in? Do we have to decide this case that it's all or nothing?
So will the city win with a clearly stated rule, will the city win with a "legal judgment" based on the whole context, or will the city win based on a clearly stated rule that has an escape clause comprising Justice Stevens's Vietnam memorial hypothetical?

ADDED: Lawprof Chris Lund reads the transcript:
... Summum argues that the display was the Eagles' message in 1971, and it's the Eagles' message now. But that claim is really hard to square with the fact that the display has been owned and controlled by the government and has been sitting in a government park for 36 years. The Eagles haven't really been involved since 1971 -- so how is this their speech? So Summum's counsel says that the crucial thing is this -- it can't be the government's speech until the City officially adopts it by some sort of resolution....
JUSTICE SOUTER: So this case -- your claim would disappear if this town in Utah had passed an ordinance saying we adopt the Ten Commandments Monument?

MS. HARRIS: It would, Justice Souter. We would no longer have an equal access right going forward --

JUSTICE SOUTER: But that's -- I mean, if that's all that's involved here, we're engaging in kind of a -- almost a silly exercise in formality.
Now Summum's counsel tries to say it's not a mere formality. She suggests that much of the Mormon population might object to the display because it's not the Mormon version of the Ten Commandments.... But besides being arguably a formality, it's difficult to see where the "official resolution" requirement would be coming from in terms of precedent or principle....
Lund thinks Summum may lose 9-0.

26 comments:

SteveR said...

The context is a little different though, in that the Van Orden monument has been where it for more than 40 years, and the Pleasant Grove 10 Commandments only dates back to 1971.

So only 37 years? Yeah I say get rid of it.

vet66 said...

I was taught in the military that it doesn't matter who is in the foxhole with you as long as they can shoot straight.

Define your mission.

Geoff Matthews said...

Also, the city of Pleasant Grove was founded by Mormons, and the 10 Commandments monument isn't the Mormon version of the 10 Commandments, so it doesn't reflect the history of the city in quite the same way.

The Mormon version? I don't want to be disrespectful, but you clearly don't know what you're talking about. Mormons recognize the same 10 commandments that are listed in Exodus (both versions).

Steve beat me to it. 37 years just isn't long enough.

Ann Althouse said...

"don't want to be disrespectful, but you clearly don't know what you're talking about."

Well, then the lawyer who argued the case didn't know what he was talking about, because I took that point from him. There are different versions of the 10 Commandments.

Ann Althouse said...

And by lawyer, I mean the lawyer who argued on behalf of the United States. From the brief for the United States:

"Indeed, the Eagles' monument does not even contain the same version of the Commandments that the Mormons observe. [FOOTNOTE:] See Ten Commandments, Additional Information, http://www.lds.org/ldsorg/v/index.jsp?vgnextoid=bbd508f54922d010VgnVCM1000004d82620aRCRD&locale=0&index=20&sourceId=54a0f73c28d98010VgnVCM1000004d82620a (visited Aug. 15, 2008); Br. Amici Curiae The American Jewish Congress, et al., in Supp. of Petr., Van Orden v. Perry, 545 U.S. 677 (2005) (No. 03-1500), 21-22 & App. A (setting forth various versions of the Ten Commandments and describing significant theological differences associated with different treatment of graven images).; Br. Amici Curiae The American Jewish Congress, et al., in Supp. of Petr., Van Orden v. Perry, 545 U.S. 677 (2005) (No. 03-1500), App. A (setting forth various versions of the Ten Commandments); see also id. at 21-22 (describing significant theological differences associated with different treatment of graven images)."

Ann Althouse said...

On the age difference between the Van Orden monument and this one, from the transcript:

JUSTICE GINSBURG: Before we get -- before
we get away from the Government, the Establishment Clause, you said, well, Van Orden answered that, but did it? Because you don't have here a 40-year history of this monument being there, and nobody seems to be troubled by it.
MR. SEKULOW: There is a 36-year history
here. This monument has been on display since 1971. So this monument has been there a long time, and --
JUSTICE SCALIA: I think 38 is the cut-off
point.
MR. SEKULOW: Is that the cut-off?
(Laughter.)
MR. SEKULOW: Perhaps I miscounted. It may
be 38.

Spread Eagle said...

This is what you get when you have 50 years of where the supreme court makes it all up as they go along, taking only a handful of cases a term and with plenty of idle time on their hands. A city having a granite Ten Commandments in a park is not "establishing a religion. " Establishing a religion is where congress passes a law saying "X" religion is the national religion, along the lines of Henry VIII and the Church of England.

former law student said...

Even the most doctrine-loving justices seem to be bothered by the practical problem of city parks becoming cluttered with hate monuments, weird stuff, and, eventually, rusted-out cars.

Like the Car Spire in the Cermak Plaza in west suburban Chicago?

http://flickr.com/photos/shylobisnett/sets/72157602317312088/

Unfortunately, Big Bill Bored in that same shopping center is no more. This assemblage of cast-off appliances disturbed people even though it was on private property:

http://blog.daytonc.com/archives/date/2007/01 (Second post down from top.)

It's art, and that's all that matters.

former law student said...

A city having a granite Ten Commandments in a park is not "establishing a religion. "

Cool. So, no problem if the Knights of Columbus want to hang crucifixes above all post office entrances?

JAL said...

the 10 Commandments monument isn't the Mormon version of the 10 Commandments, so it doesn't reflect the history of the city in quite the same way.
As someone already pointed out -- what do you mean the Mormon version of the Ten Commandments?

Do you mean they like the King James Version of Exodus 20? The Mormons I knew in the early 70s used the KJV -- along with millions of other churches.

I have a little familiarity with Mormonism, though I think perhaps there may be a Mormon commenter on this blog. I don't recall that there is a church mandated commitment to the KJV, but if that's what you mean, I don't think it's any big whup.

So is that the (non)issue -- the 1971 list is or isn't a KJV list?

Ann Althouse said...

JAL, read my answer.

Do you think the U.S. got it wrong in their brief, which I quoted?

JAL said...

So I checked out the link Ann provided and it isn;t there... but the index was. According to the index the KJV is the "official" version usewd by the church. At that site it does not state the position of some Christians which is that the KJV is the ONLY correct version.

That being said, what version is on the monument? And why does it matter? God doesn't exist so who cares anyway?

(Oh. I get it ... we are entering into the era of Obama and there are going to be even more graven images all over the place. Can't be confronted by that "no graven image" thing on public property.... No! Wait ... there are plans to add to Mount Rushmore. I saw it on the net myself!)

former law student said...

The Ten Commandments issue is how the church parses the Biblical text, not the translation used. Here are the Ten Commandments from mormonwiki.com:

1. Thou shalt have no other gods before me
2. Thou shalt not make unto thee any graven image
3. Thou shalt not take the name of the Lord thy God in vain
4. Remember the sabbath day and keep it holy
5. Honor thy father and thy mother
6. Thou shalt not kill
7. Thou shalt not commit adultery
8. Thou shalt not steal
9. Thou shalt not bear false witness against thy neighbor
10. Thou shalt not covet any thing that is thy neighbor's

Joe said...

Dang, was a block away from that park this morning; should have taken a picture.

Joe said...

From what I understand the monument uses the King James version which is the accepted English bible by Mormons. (If you're into bibles, the annotated version the LDS church uses is pretty good. Yeah, slanted toward Mormon doctrine, but still cross referenced very well. I threw mine away a few years ago.)

halojones-fan said...

I like the "museum curator" argument. The city must still accept the monument--but there's no requirement that they display it. It can be put in a warehouse and forgotten about, as it eminently deserves.

former law student said...

Nobody cares but me, I suppose: Here's a picture of the Van Orden v. Perry monument donated by the FOE. I'm going to assume the two FOE monuments have the same text. The text of three (and a half?) of the commandments differ from the Mormon version:

http://en.wikipedia.org/wiki/Image:Ten_Commandments_Monument.jpg

Ann Althouse said...

I think the dispute about the versions is over whether "no other gods" and "graven images" are #1 or #1&2. Then, whether coveting is #10 or #9&10.

There's a useful chart in Wikipedia:

http://en.wikipedia.org/wiki/Ten_Commandments

There is also a dispute about whether to say "kill" or "murder."

Quayle said...

There is no official "Mormon" version of the ten commandments. As stated above, Mormons accept the Bible version, and other scatterings of the same commandments in other places in scripture.

English speaking Mormons standardize on the King James Version only for the sake of consistency, and perhaps because some Mormon leaders in the past have liked the grace and beauty of its prose. However, Mormons have no doctrine about the KJV’s specific preference or authority.

Actually, Joseph Smith felt his German bible was the best version/translation he had.

These points flow from the fact that Mormons do not believe in an inerrant scripture, except as it was first written by the inspired writer. For one to totally understand the meaning of the scripture, it requires one to have the same gift of the Spirit that the writer had, which all are entitled to if they seek it and live for it.

Joseph Smith got roundly criticized for saying that Mormons believed in the bible “as long as it was translated correctly”. The Protestants that believed in the inerrant and complete bible were (and are) outraged.

It is, perhaps, noteworthy that since then, the Protestants have produced a number of new translations of the bible in order to land on a more “correct translation.”

DKWalser said...

For what it's worth, there is no "Mormon version" of the 10 Commandments. The LDS Church uses the KJV of the Bible (for English speaking members). The differences in language people are noting are due, I expect, on the fact the monument's uses a condensed version of the biblical text. The creators of the monument simply used a different summary version of the commandments than may have been used on another monument. That may have reflected a stylistic choice, but I'm all but certain that it did not represent a doctrinal choice. (FYI, I graduated from Pleasant Grove High School a few years after the monument was put in place. IIRC, my girlfriend and I enjoyed a picnic lunch next to the monument. I don't recall ever believing that it was in anyway uniquely Mormon.)

I read the government's brief as saying that the monument should not be viewed as "establishing a particular religion" because the monument was not using the Mormon version of the commandments. Instead, the monument used a generic version of the Commandments.

JAL said...

Ummmm....

Talk about counting angels on the head of a pin (an exercise in some monastery in the Midde ages. Or so I have heard.)

I am not getting the problem with the picture on wikipedia being different from the Ten Commandments. Or maybe that wasn't the question?

Whipped out my KJV and there they are, big as life.

The "problem" apparently occurs not in the content, but how the ten are divided up. In that case the FOE includes all of the content. And I don't see that they are numbered ...

Roman Catholics and some Lutherans (apparently -- maybe that's why Wisconsin people are into this?) put 1 and 2 together, and separate the coveting of the wife from the coveting of other things -- even though that is not the first of the do not covet list. (Go figure -- wonder if that has any significance?)

Almost all Protestants,Eastern Orthodox, and some Jews agree on which of the ten is which. (Again, keeping the whole text.) "Contemporary" Jews apparetnly start the Ten with verse 2 (which is a declaration, not a command). They combine no other gods and no graven images.

Nowhere do I see a departure from the whole text except for the inclusion of verse 2 which sets the stage and "authorship."

I would think it is more or less outside the scope of the court to decided which version is "correct." (If indeed there is a difference... what is it that isn't correct re the Mormons again?) That's messing with theological distinctions -- which isn't really such a big deal anyway, as much as it is a translators' and theologians' dinner time conversation.

The content is the same.

And "kill" and "murder" is an issue of translation. I have heard the Hebrew is "do murder" which when put into the KJV in the 1500s ended up as "kill." So a court is going to deal with that? Establishment?

JAL said...

erp.

"do no murder"

blake said...

Cool. So, no problem if the Knights of Columbus want to hang crucifixes above all post office entrances?

Discriminatory to Vampiric Americans.

hdhouse said...

I have a question.

What if at the bottom of the monument there is a little notation that says "the ten commandments from the Mormon Bible" and if memory serves me, remember that monument of the 10 commandments in Austin that Ann blogged about last year sometime? What if that said "The Ten Commandments from the King James Bible". They don't of course...but Austin is probably implied from the King James and the other from the Mormon bible....

Now the question...what if the monument in question had a citation of the King James, even if implied, and was stuck in the middle of Mormon country. that would require some "on the fly" judgments as there doesn't appear to be anything set in stone (pardon me!) on this fine distinction.

Just asking.

Joe said...

What if at the bottom of the monument there is a little notation that says "the ten commandments from the Mormon Bible"

It would be stupid because there is no "Mormon Bible". English speaking Mormons use the King James Version. Other nationalities generally use the most widely accepted bible in that language.

sean said...

"So, no problem if the Knights of Columbus want to hang crucifixes above all post office entrances?"

Not that I can see. Forget the doors; if the US Postal Service wants to issue its own stamp commemorating Eid, or Christmas, or Easter, with crucifixes, or baby Jesus, or crescents, or whatever, I don't have a problem with that.