Displays of the Ten Commandments have long been a lightning rod in constitutional law, and so they are again today. The Supreme Court is hearing arguments in a challenge to a city’s decision to allow the Ten Commandments to be placed in a public park, while refusing to allow a different religion’s display. The court should rule that that city’s decision violates the First Amendment prohibition on the establishment of religion.
It is pretty hard to imagine the Supreme Court siding with the city in this case if they are refusing the monument on anything even appearing like religious grounds and if they have accepted monuments donated by other groups. The only way I could see them possibly winning is if they were to say that they didn’t accept monuments from any religious groups and the 10 Commandments came from a group constituted for a secular purpose. But then the Summum could just donate the monument through other channels and they are back at the begining of this.
What does any of this have to do with the First Amendment that says (emphasis mine), “[b]Congress[/b] shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof”?
Certainly, our nations founders didn’t intend the 1st Amendment to pertain to prohibiting cities from putting up the 10 commandments in a public square. Or creches, or Christmas Trees. You get the idea.
close bold tag inserted by Elf
Oops! Forgot to close the bold tag:
What does any of this have to do with the First Amendment that says (emphasis mine), â€[b]Congress[/b] shall make no law respecting the establishment of religion, or prohibiting the free exercise thereofâ€?
Certainly, our nations founders didn’t intend the 1st Amendment to pertain to prohibiting cities from putting up the 10 commandments in a public square. Or creches, or Christmas Trees. You get the idea.
Interesting that the Supreme Court even accepted the case for review, if it is as cut and dried as it seems. Thus, it is doubtful the facts listed by the NYT are all there. Otherwise, there is no way the S. Ct would have agreed to hear the case.
Hello flaAnglican (#3). In answer to your question, the Supreme Court has long held (for many decades, more like a century or more) that the language here (“Congress shall make…”) is to be interpreted as also binding correspondingly lower levels of government.
For example, we all know that in America nobody can imprison (say) a Roman Catholic for going to Mass. We all know that the reason is the first Amendment. But that could only be a sure protection if, in addition to preventing Congress from passing anti-RC laws, it also prevented the state of Arizona and the city of council of Phoenix from doing so.
Re # 2
Flaanglican,
I think it less a case of prohibiting cities etc from putting up Christmas trees etc than it is a case of telling one religious group NO after they said yes to a Judeo-Christian display. If you are going to let one group put up their display you have to let all the others.
Under the mercy,
[url=http://ad-orientem.blogspot.com/]John[/url]
An [url=http://www.youtube.com/watch?v=Gj4pUphDitA]Orthodox [/url] Christian
Re # 5
Jon,
You are absolutely correct. The basis of this jurisprudence is the 14th Amendment ratified in the wake of the War Between the States. Prior to the war the Bill of Rights was generally interpreted to apply only to Federal Law (see Barron vs Baltimore 1833). What the 14th amendment did was to make all citizens of the various states citizens of the United States as well. This effectively extended the protections of the Bill of Rights to state and local law.
Under the mercy,
[url=http://ad-orientem.blogspot.com/]John[/url]
An [url=http://www.youtube.com/watch?v=Gj4pUphDitA]Orthodox [/url] Christian
I fear that the foregoing discussion is entirely beside the point. The group in question quite deliberately avoided raising any issues under the Religion Clauses because it is well-established that a private party does not have a Free Exercise right to put the Ten Commandments up in a public place, although it may be permitted to do so under some circumstances. That would equally apply to this group’s Seven Aphorisms. If the city was putting up the monument, the Establishment Clause would ban the Seven Aphorisms as much (or little) as the Ten Commandments, so the group had nothing to gain there, either.
The case was therefore filed, pled, argued, and decided at both the District Court and Court of Appeals levels on First Amendment Free Speech grounds. The Supreme Court granted review only to answer the question whether a city could accept one monument and reject the other when the only difference between the two is their content. The argument today at the Supreme Court hinged on the degree to which the government could control content without infringing freedom of [removed]for example, can they allow erecting a private Gulf War memorial without allowing an Al Queda tablet). An interesting question, but not the same as a freedom of religion case.
I think the “money quote” from the NYT editorial is this:
“Public property like Pioneer Park must be open to all religions on an equal basis — or open to none at all.”
I admit that at first glance the Establishment Clause of the First Amendment does appear to support that view. But what I’ll suggest is that in practice such an interpretation quickly becomes:
“Public property like Pioneer Park must be open to no religions at all.”
Why do I say that?
Well, because it’s obvious that local governments need the ability to restrict graphic displays of (take one example) hard core pornography in public places. But it is a fact that in many religions (to say nothing of some religion I might make up on my own) huge graphic images of sexuality are a central part of them.
If we grant the obvious right of Winesburg, Ohio to restrict huge displays of erect penises and gang rapes and so on, but we also require that all religions or none must be able to be represented, then it follows that none can be represented.
I’ll admit that this is personally not a fighting issue with me. I don’t personally feel the need to insist that all local governments be able to put up religious displays in public places. The important thing is the govt vigorously defend my right to be religious, to attend church, to speak about my religious experience, to gather in public or private places with like minded persons, to attempt to convert others, to publish books, and so on. That’s important. These monuments — and the govt deciding who gets to put up what — is (in my opinion) by comparison trivial.
I will say, however, that it’s disingenuous for a person to say “A or B” when in reality they know that A is not an option. Just be honest and say B. Likewise, the NYT should be honest and say that they’d like all religious monuments banned from public spaces.
#3, probably no case like this is complete without an appeal to the Fourteenth Amendment:
[i]No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[/i]
I assume the prohibition on states has been interpreted to extend to municipalities also, though I’m no expert.
So states can’t pass laws violating the ‘First Amendment rights’ because of the Fourteenth Amendment. The NYT is just too lazy to discuss that – or the editorial writer may be unaware of how the 1st amendment gets applied to something other than Congress.
That said, I’m not trying to make the case that Christmas trees in public squares are taboo.
Whoops..somebody else already discussed the 14th amendment…sorry, should have reloaded before sending…
4. Billy: sharp analysis. Now you’ve whetted my interest enough to follow the case.
5. Jon: The States are not “lower levels of governmentâ€. Each is sovereign. That is, neither of the following is true:
US : State :: State : County
US : State :: US : District of Columbia
Also, the States could very well restrict the religious practices of their citizens but for their own state constitutions, and many did in various ways, until Cantwell v. Connecticut, 310 U.S. 296 (1940) applied (“incorporatedâ€) the 14th Amendment (1868) against the states in matters regarding the free exercise clause of the 1st Amendment.
7. Ad Orientem: The 14th Amendment did not in and of itself incorporate the entire Bill of Rights against the states, but many of the first 10 Amendments were incorporated against the states on a case-by-case basis over the 1940s-1960s. Note, for example, that Curtis v. Loether, 415 U.S. 189 (1974) found that the right to a jury trial in a civil case (Amendment 7) is NOT necessarily incorporated.
10. Sidney: In the U.S. a municipality is nearly always deemed a mere agency or department of a state, though not in the same way that a county is.
Ah, well. We replicate Rome. Rome tolerated many religions. It was only hard on any that claimed to be the only one way, like Jews and Christians.