The Supreme Court waded into the murky waters of the Establishment Clause yesterday and reached a surprising unanimous verdict. In Utah, a town park holds many monuments, one of them to the Ten Commandments. A fringe religious group called Summum, that combines elements of pseudo-Christian Gnosticism with Egyptian elements, sought to erect a monument with its seven principles listed. The town declined. The religious group sued. The Court sided with the town.

The ruling, written for the Court by Justice Samuel Alito, Jr., but joined by concurrent opinions to reach the unanimous verdict, was not based on the most obvious factual finding in the case: Summum’s principles are gibberish. "Everything is dual; everything has an opposing point…like and unlike are the same; opposites are identical in nature, but different in degree…"&c. You get the picture. No, dear Summumites: Like and unlike are not the same. Murder is not like kindness. Hitler is not like Teresa of Calcutta. But, this was not the basis of the Court’s ruling.

Essentially, the Court held that monuments are not very much like speech and that the town has a right to decide how it wants to present itself to the public by choosing the kinds of monuments it wants in its parks. The town can’t restrict Summum from going to the park with a soapbox, but it can decline to erect a permanent monument.

The Court did not venture onto two related slippery slopes. First, the conservatives on the Court, at the urging of the Religious Right, want to permit displays of the Ten Commandments and the Court has permitted some, such as in Texas, and forbidden others, such as in Tennessee. In the latter case, the Court held that the display was trying to make a religious statement while, in Texas, the monument to the Ten Commandments on the grounds of the State Capitol was permitted because it focuses on the historical role of the Commandments. So, if you denude the Ten Commandments of their religious significance, then you can place them on public property.

But, why should Christians and Jews view this denuding as anything but a defeat? Indeed, the Commandments, robbed of their religious significance, are just as much like gibberish as the Principles of the Summumites. The first three Commandments focus on the relationship between God and man: "I am the Lord your God who brought you out of Egypt" they begin. Only once that relationship is established does the Lord give ethical norms to his people. Robbing the Commandments of their religious significance and then allowing them in the public square is like serving cream of broccoli soup with no broccoli. It just doesn’t make sense.

The other area the Court did not explore, but which must come about some day, is the way their jurisprudence on the religious aspects of the First Amendment have become a subset of their jurisprudence on the Free Speech clause of that same Amendment. This is exactly the reason their rulings on the Ten Commandments monument are so garbled and appear, to the rest of us, so ad hoc.

Still, the decision is a good one not least because it follows the pattern Chief Justice John Roberts has set out, namely, that the Court should only decide the law necessary to address the circumstances of the case in front of them. This makes for narrow decisions and is frustrating to anyone with a philosophic or theological cast of mind. But, narrow decisions make for better law. Over time, a new jurisprudence about the Religious Clauses in the First Amendment will emerge, and the taking of time in a fast-paced, Black-Berried, DSL’d culture is not a bad thing at all,

 

 

Comments

Anonymous | 3/2/2009 - 12:57pm
I believe the opinion is wrongly decided. Justice Alito predicates his opinion on the concept of "government speech," concluding that by accepting and displaying the monument, the government was expressing a point of view consistent with the "esthetics, history and local culture" of the community, thereby removing its actions from judicial scrutiny under the Free Speech Clause of the First Amendment. In concluding that acceptance of the monument is not adoption of the intended meaning of the donor, Justice Alito argues that "text-based" monuments are subject to widely varying interpretations that may change over time. The examples he cites, however, are hardly analogous to a display of the Ten Commandments. The first example is the "Imagine" mosaic donated to Central Park in memory of John Lennon. The second is a statue in Fayetteville, Arkansas containing the word "peace" in various languages. While clearly observers of these monuments will have a myriad of interpretations, they can hardly be considered as "text-based." Justice Alito attempts to buttress his argument with references to privately funded war memorials and even the Statue of Liberty, but those examples are clearly not relevant. Only passing reference is given to the Establishment Clause in the opinion, perhaps because the case was pursued as a Freedom of Speech case. But for reasons that would need to be addressed in a longer comment, that approach would have failed as well. It appears that the Court is willing to gloss over the obvious by treating the Ten Commandments not as a statement of a particular religious doctrine, but as one of the cultural and historical elements of American life. What the average person regards as a foundation of a specific religious tradition can be sponsored and displayed by the government provided only that we officially regard it as nothing more than cultural pablum. Thus we reach the conclusion we wish to reach by insulting both religion and logic.
Anonymous | 3/2/2009 - 9:52am
I want to correct my previous comment. Australia does have a Constitution and section 116 states its establishment clause: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no public test shall be required as a qualification for any public office or public trust under the Commonwealth. However, the remainder of my comment is valid.
Anonymous | 2/27/2009 - 6:08pm
I reside in Australia, a country without a Constitution or an establishment clause. Church and government mingle more freely here, without apparent risk to either. For example, government supports church schools to an extent. I am also an American citizen but have lived in Sydney for many years. Have I missed something? Are Christians suddenly threatening to overthrow the government or impose Islamic-type law instead of the Constitution? Is that the slippery slope that the Supreme Court is trying to protect America from? Based on the Australian experience, surely there is better way to balance church and state than the one the US has defined for itself.
Anonymous | 2/26/2009 - 10:10pm
It is ironic that the Supreme Court ruled the way that it did, considering that Barack Obama is our first Summum president. In fact, his address to Congress this week was a perfect expression of the Summum credo – “ Everything is dual; everything has an opposing point…like and unlike are the same; opposites are identical in nature, but different in degree”. President Obama does not believe in big government, but he has decided to have the government take over our banks, car companies, and the entire health care system. He is going to identify and cut $2 trillion of wasteful spending, but he signed a trillion dollar pork-laden “stimulus bill” that he didn’t even take the time to read. He said he would not tolerate any earmarks, but approved a $400 billion budget bill that included 9,000 earmarks. He has ordered the closure of Gitmo, but has also decided to keep it open indefinitely. America should be proud that we have finally overcome centuries of prejudice and elected a Summumite to our nation’s highest office. We should also be prepared to live with the consequences of being governed by a man whose principles are, as Michael Sean has so eloquently put it, “gibberish.”
Anonymous | 2/26/2009 - 1:35pm
''But, why should Christians and Jews view this denuding as anything but a defeat? ... Robbing the Commandments of their religious significance and then allowing them in the public square is like serving cream of broccoli soup with no broccoli. It just doesn’t make sense.'' I agree that Christians shouldn't celebrate legal rulings that have allowed government speech to (essentially) mimic religious speech on the grounds that the religious content has become meaningless (''In God We Trust,'' etc.). But people of faith shouldn't be pushing the government to mimic religious speech in the first place! Let the Government speak of governance and the Church speak of faith. I get nervous when the government embraces religious imagery, suggesting that God is on its side. Furthermore, I want my children learn about God from their church and parents, not from their public school teachers, elected officials, or government-sponsored religious monuments set alongside secular monuments. The Ten Commandments belong not on monuments in parks, but in places of worship and religious education and, most importantly, inscribed on the hearts of the faithful.