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,
