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February 25, 2009

Supreme Court okays religious test, finds that government speech is superior to individual speech

Mother Jones has the most elucidating coverage that I've found.

The Summum sect had sought to erect a monument to it's "Seven Aphorisms" in a Utah city park which has a monument to the "Ten Commandments" already in it. Rebuffed by Pleasant Grove City, the Summum had won in federal court and it was appealed all the way up to the SCOTUS.

A lower federal court had agreed with the Summum, but the justices in Washington were clearly swayed by arguments that a favorable ruling for Summum would open the door to a "parade of horrors" in public space everywhere.

The Summum clearly had a sympathetic case, especially to stalwart believers in the separation of church and state. But they weren't helped by the very real example of Reverend Fred Phelps, the infamous head of the Westboro Baptist Church in Kansas. Phelps, who runs www.godhatesfags.com, wants to erect a public monument in Casper, Wyoming depicting Matthew Shepard, the gay University of Wyoming student who was murdered in 1998. The caption would read, "Matthew Shepard entered Hell October 12, 1998, in defiance of God's warning 'thou shalt not lie with mankind as with womankind; it is abomination.'" If the Summum had prevailed, Phelps might have, too.

Fair enough. I can certainly empathize with the desire to not give whackjob Phelps a platform for his hate speech. But I see no way to construe the Summum monument as hate speech. It's merely a different set of religious rules.

Justice Samuel Alito wrote that picking and choosing monuments for a public park was not the same thing as deciding who can and can't speak in a public place, as Summum had argued.

I agree with his argument on it's face. But it's an intellectual red herring. Picking and choosing between various overtly religious monuments is impossible to do without applying the very sort of religious test which the Constitution strictly forbids be applied to elective office. Granted, this isn't about elective office. But the proposition that it's strictly forbidden in one area of government but okay in another is nonsensical.

“We think it is fair to say that throughout our nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity,” and properly so, Justice Samuel A. Alito Jr. wrote for the court. - NYT

That's true enough. Likewise, throughout our nation's history the general government practice with respect to human slavery has been one of selective receptivity. Does that historical reality make slavery okay?

Justice Breyer's concurring opinion illuminates.

Justice Stephen G. Breyer emphasized in a concurring opinion that, while the Summum members have been thwarted in their bid to have a monument erected, “the city has not closed off its parks to speech; no one claims that the city prevents Summum’s members from engaging in speech in a form more transient that a permanent monument.” In other words, Summum members, like other citizens, can presumably hand out leaflets or stand on soapboxes and hold forth on the issues of the day.

The legal strategy of the Summum group was apparently flawed in pursuing a free speech case rather than a separation of Church and State case. To put Breyer's assertion in a different historical context... citizens retained the right (more or less) to speak out against slavery and the fact that slavery remained legal in certain states didn't deny them that right. Which would be true enough, but it would also utterly avoid the real issue - slavery. Likewise this ruling utterly avoids the real issue - separation of Church and State.

What the SCOTUS effectively ruled was that government entities have their own right to free speech and that it is significantly broader than that afforded to citizens. Which is exactly the sort of thing that the ACLJ, staunch opponents of Church/State separation, have long wanted.

More coverage at WaPo.

Posted by Kevin at February 25, 2009 11:11 AM