A Wall of Separation: The Ten Commandments (Part Two)
Is it constitutional for government to post the Ten Commandments at the State Capital? Is it constitutional to allow someone else to do it? To prohibit it if someone else wants it to happen?
Turns out the answers can be a bit messy.
In Stone v. Graham (1980), it was determined that schools could not post the Ten Commandments or other religious materials in classrooms without historical or other pedagogical context – even if the materials were paid for by private money. Then again, that’s school – not the State Capitol.
In 2003, Alabama and Tennessee handled debates over the Ten Commandments in government offices by either firing the offender (Alabama) or moving the display to a slightly more private location, although still on government property (Tennessee). Neither situation reached the Supreme Court.
It was in 2005, though, that things got really interesting. On the same day, the Supreme Court announced its decisions in both McCreary County v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005) – both cases involving the Commandments on public land. While Kentucky’s displays were determined to be unconstitutional, the monument in Texas was acceptable. Both were split decisions, and the difference came down to context – both the displays themselves and the history behind them – particularly in terms of intent.
That’s where we left off last time. Now the real fun begins.
The little town of Pleasant Grove, Utah, allowed privately donated displays in its public park. Among the items placed there as of 2008 was a monument of the Ten Commandments – donated by that same Fraternal Order of Eagles group we met in Van Orden. The problem in this case didn’t stem from anyone’s request to remove the Commandments – quite the opposite. Instead, another faith wished to place their own monument in the park as well.
Summum is a faith and/or philosophy which originated in the 1970s, although it draws on ideas and sources from ancient times. It’s built around the Seven Aphorisms in the same way one might argue Judeo-Christian traditions are anchored in the Ten Commandments. According to Summum teaching, Moses was given these Seven Aphorisms by God on Mount Sinai, engraved on twin tablets. The Israelites were not quite ready for that theological jelly, however, and Moses smashed the originals in frustration and headed back up.
He returned with a second set of tablets, this time inscribed with “lower laws” which were more easily understood and followed. These were the Ten Commandments, basic guidelines providing a starting place for the Israelites to grow and develop.
Side Note: Summum produces a “spiritual nectar” – wine, by worldly legal definitions – infused with various “resonations” to help absorb spiritual concepts. Each variation contains a different concept, so followers consume whichever nectar corresponds to the truth they’re seeking that day. Presumably, it helps loosen up one’s understanding. This seems like a brilliant addition to any theology.
They also have this thing about mummifying yourself and your pets after death which is far less appealing, but perhaps with enough “enlightenment nectar”…
In any case, the Summum church wanted to place a monument of the Seven Aphorisms in the park. They thought it would make a nice companion piece to the Ten Commandments already there. The city of Pleasant Grove disagreed. The mayor denied Summum's request because the monument did not "directly relate to the history of Pleasant Grove."
So there’s the question – is Pleasant Grove constitutionally required to accept all religious monuments if it accepts any religious monuments?
The Summum convinced the 10th Circuit Court of Appeals (the Federal Court whose jurisdiction also includes Oklahoma) that it was. This decision was overturned when the case reached the Supreme Court. This is the sort of thing which could go either way next time, depending very much on the makeup of each court and the details of the specific situation.
In other words, this variation on the issue isn’t as clearly settled as we might like to hope.
In Pleasant Grove v. Summum (2009), the Supreme Court found that the city had a right to decide what was and wasn’t posted in its park – there was no “establishment” or “free exercise” issue. The decision was unanimous, but there were four separate concurring opinions submitted – suggesting that while the outcome was agreed upon, the precise reasons for it were not. This, too, matters the next time a similar case comes up.
Just so we’re not getting too comfortable, you see.
The majority opinion essentially said that the placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. A government entity is entitled to say what it wishes and to select the views that it wants to express. It may exercise this same freedom when it receives private assistance for the purpose of delivering a government-controlled message.
This does not mean that there are no restraints on government speech, but neither do they have to send messages which don’t represent their views.
Here, the Park’s monuments clearly represent government speech. Although donated, the City has “effectively controlled” their messages by selecting monuments that present the image that the City wishes to project to visitors; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument; and it has expressly set out selection criteria.
A park is different from a forum, the Court maintained, at which many different speakers might represent many different viewpoints. Monuments are also different than holiday displays or temporary demonstrations favoring one belief or idea over another. The city has a right – within reason – to determine what’s appropriate for a permanent installation. If anyone can place any message in the park, it will soon be all messages and no park.
The Summum tried to put up the same monument in a different city – Duchesne, Utah. In Duchesne, there was only one monument in the park – the Ten Commandments. After the decision in Pleasant Grove, Duchesne realized that they would be unable to refuse the Summum. An assortment of statues may be cultural and historical, but a single monument is “establishment of religion.”
They relocated the Ten Commandments to avoid the lawsuit.
There was a second case of interest in 2009 which involved a display of the Ten Commandments. This one never made it to the Supreme Court, but was decided by that same 10th Circuit Court mentioned above.
Haskell County, Oklahoma, had a Ten Commandments monument on their Courthouse lawn, along with several pieces honoring military veterans of various wars. James Green, a local resident, believed the monument violated the separation of church and state. With the help of the ACLU, he sued to have the monument removed.
The 10th Circuit Court of Appeals ruled in favor of Green. Haskell county commissioners appealed the decision, but the Supreme Court of the United States declined to hear the case. When that happens, the decision of the lower court stands.
In other words, during the same year the Highest Court was confirming Pleasant Grove’s right to pick and choose park displays, it was perfectly comfortable with Haskell County being forced to move their copy of the Ten Commandments.
As mentioned before, the difference is so often in the details…
The Haskell monument was moved to the lawn of the American Legion, only a few feet away from the courthouse, where it remains today. Much like the Ten Commandments monument residing at the OCPA, within throwing distance of the State Capitol, anyone wishing to view this particular graven image may easily do so within sight of government land – just not ON that government land.
There’s one last case, from only a few years ago.
The city of Bloomfield, New Mexico, allowed the installation of a ginormous Ten Commandments monument on the front lawn of City Hall. While technically funded by private money, the proposal and oversite were the work of Kevin Mauzy, a member of the City Council.
Two locals objected to the monument as a government endorsement of religion and sued. The 10th Circuit Court of Appeals confessed the issue was somewhat tricky in light of McCreary County v. ACLU of Kentucky (2005), Van Orden v. Perry (2005), and other related precedents. In the end, however, the Court ordered in Felix v. Bloomfield (2014) that the monument be removed.
The 10th District Court – the highest level of Federal Court likely to hear any case involving an Oklahoma monument – has consistently ruled for the removal of religious artifacts from public grounds. The Supreme Court has been slightly less consistent, finding at least one circumstance (in Van Orden) in which context and history offset any First Amendment concerns, but otherwise rejecting state efforts to “contextualize” religious displays after the fact – especially when the clear goal is to make a statement via the Ten Commandments.
It seems unlikely that Oklahoma – or any other state – can successfully “tweak” establishment enough that an idol to Old Testament law would suddenly become constitutional. Then again, the makeup of the Court is changing – and that matters. The details – including, but not limited to, historical context – matter.
The law can protect and save us, or quickly transform into a brutal master. Laws are written to delineate what’s “right,” but too often applied in rationalization what’s “legal” as defined by those currently in power. That is, in fact, the greatest objection to enshrining the foundation of Old Testament law in a place of honor on secular state government grounds.
It’s not about rejecting faith, or any particular flavor thereof. It’s that we usually manage enough cruelty and consequence on our own, without overthrowing the social contract in favor of divine judgement. It’s that we already do enough to distort both human justice and divine grace without binding ourselves so proudly to values already surpassed by both.
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