Government Property - Religious Display

[cannon_fodder]

In case you aren't paying attention - the issue has come up again.  Basically, a town has the religious teachings of one group on display in a public park.  Another group offered to donate a similarly sized display for their religion with a n identical purpose.  They were denied permission and sought relief on free speech grounds (not establishment clause because the city merely allowed the display of the monument, it did "adopt" the monument).

Appellate Case:
http://www.ck10.uscourts.gov/opinions/06/06-4057.pdf

The Federal District Court said they had a right to have their object displayed.  The 10th Circuit Court of Appeals agreed.  The US Supreme Court heard it today, with wildly mixed and candidly undecided statements.
http://www.bloomberg.com/apps/news?pid=20601103&sid=a2xc.uc9D5Hc&refer=us

As it currently stands - if a city provides a public forum for the expression of speech any restrictions on that speech must be subject neutral.  They can dictate the time, place, and aesthetics of the speech (not the mayors office, don't block traffic, no naked lady protectors), but they may not restrict based on subject (pro-choice can speak, pro-life can not).  In other words, a Nazi has as much right to preach against the Jews as the NAACP has to preach in favor of equality (so long as they are not inciting violence).

Additionally, religious monuments can be displayed in a historical and agenda neutral manner.  In the Supreme Court, for example, the Ten Commandments stand next to Hammurabi's code, the scales of justice, the Greek god of justice  and other historical law, rule, or fairness symbols.  So long as the religious symbol is part of a larger work and serves a secular purpose, it's just fine.  The Ten Commandments in a public park along with a plaque commemorating the founding of the town as a mission might well suffice.  But a religious monument for the sake of promoting that religion is not allowed.

By suing on Free Speech grounds the town was put in a catch 22.  If the town claims the monument is not adopted by the town, then other groups should have access on grounds of free speech.  If they are denied because of the content of the message, the town is dictating what message can be "spoken."

If the town says it has adopted the message and the monument speaks for the town, it can prohibit other speech as it sees fit (ie. postings at City Hall, monuments to Veterans, the Statute of Liberty).  In doing so the Free Speech claim goes away. However, they would invite a new suit on Establishment grounds.  A government organization can not favor one set of religious beliefs over another.

Since the town is supporting the Ten Commandments and the Plaintiff is supporting an Egyptian-esque religion most will be inclined on a guttural level to support the town.  Given that we have a very conservative court, the court will likely be so inclined also.  It really seems like several of the Justices are at a loss of what to do.  The Conservative judges want to exclude fringe religions if possible, the liberals don't want to open the flood gates to every monument being placed.

If the court doesn't wuss out, we could get a real coherent ruling combining the Establishment Clause and Free Speech.  My guess is the town will be force to allow the new monument in a similar circumstance to the current one. The details and the test given (if a new one is created) will be very interesting.

[pmcalk]

I heard this on NPR today.  Interesting case.  The Supreme Court questions were interesting as well, though I think Justice Robert's question was silly.  When it comes to certain parks, the government has more of a right to control the type of speech based upon the purpose of the public place.  The point of the Statute of Liberty is to be a beacon for liberty--to that end, the government can control the displays at that location so that they correspond to a concept of liberty.  Same with Mount Rushmore--it is not a "public forum" but a monument to specific presidents.

The problem with the Utah case is that the Ten Commandments have nothing to do with the park.  Allowing one religious display and not another serves no legitimate purpose.  By allowing a display that has no connection to the park, the city has created a public forum, much as it does when it allows parades to march in the street.  Once you create a public forum, you have to allow anyone and everyone in, even if that means neo-nazis in Skokie.

[Wilbur]

I'm enthralled with Supreme Court cases and the Supreme Court in general.  One of the best books I've read on the court is 'The Nine' by Jeffrey Toobin.  A great, and sometimes funny, look inside the court.  It's also a great look into how abortion really plays a part in justice selections and how the 2000 presidential election effected the justices.

The Court has really changed how they hear testimony in the past several years.  Long ago, they actually asked questions of council because they needed an answer to a question.  These days, they really ask questions more as statements to bolster their side of the argument then a true question.

You can go to www.oyez.com and hear actual testimony in many Supreme Court cases.  I find it funny when some new lawyer gets up and thinks he/she will have 30 minutes to present his/her side of the story.  They usually don't get two or three sentences into their version of events before they are interrupted by a jurist and off they go.

It is also interesting who asks questions and who doesn't.  Justice Thomas never says a word.