Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Two cities in Utah who refused to allow a monument to the Seven Aphorisms of the Summum religion have asked for an en banc rehearing in their cases by the entire 10th Circuit Court of Appeals. Their argument appears to be quite silly:
In their petition, both cities claim that past 10th Circuit panels based their conclusions on an "erroneous understanding of government speech."The cities argue that once an item is donated to a governmental entity, that item -- be it a painting, sculpture or other display -- becomes the speech of the government and no longer of a private group or person. To that end, the government speech is indicative of the community it represents.
Well if that's the case then the cities have an even bigger problem. How much would you like to bet that if the legal challenge was simply to the constitutionality of the Ten Commandments displays already on government property in both cities, they would be arguing the exact opposite, that because the displays were donated by private groups they don't constitute government endorsement at all? But hey, whichever lie works at any given time; I'm sure that's exactly what Jesus would do.
The other obvious problem with this silly argument is that if a city was predominately Muslim, their argument would justify monuments to the Quran on public property. After all, that would be "indicative of the community it represents." How do you suppose the defenders of Ten Commandments monuments would react if that were the case? All that talk about such monuments being about "free speech" would be gone in a heartbeat and they would be screaming about the government endorsing Muslim beliefs. If the government puts up monuments to your religion, they're just recognizing the beliefs of the community; if they put up monuments to any other religion, they're endorsing that religion. Heads we win, tails you lose.
The petition states: "Under the flawed private speech jurisprudence of the panel in this case ... there exists no principled basis upon which the government could turn down for permanent display on Liberty Island a donation of a 'Statue of Tyranny,' or, perhaps, a new copper colossus bearing the message 'Pay No Attention to the Lady With the Torch -- the Golden Door is Now Closed!"'
Nonsense. No one could seriously argue either that Liberty Island is a public forum or that there is any endorsement of religion going on there. There is nothing in the Constitution that prevents the government from endorsing the concept of liberty; endorsing religious doctrines, on the other hand, is a first amendment problem.
Both cities also argue that by opening up public places, such as parks, as a speech forum could turn such places "into a cluttered junkyard of monuments contributed by all comers."
Well if it's not an open forum then that means anything expressed there is, by definition, government expression rather than private expression on public property. Which means now the Ten Commandments monument has to be removed. This is the problem with the religious right's notions of accomodationism - only their religious views can be endorsed or displayed. Anything else is "clutter".
Comments
What's the deal with the attorneys for these cities? I recognize that this sort of nonsense happens all the time, but it still astonishes me every now and then when I see someone demean his or her profession and professional reputation by publicly lavishing in such rank stupidity.
Well, this is why I gave up direct political involvement earlier in my life. The routine exposure to mind-drubbing stupidity was hazardous. Reasoned positions have virtually no impact on unprincipled people who see government as little more than a device to serve personal ends.
Just to add insult to injury, by arguing that the 10th circuit panels left the cities with no option for principled bases to decide these matters, the dirtbag attorney who wrote the petition for rehearing was suggesting indirectly that the city was taking a principled position. As Ed amply demonstrates, nothing could be further from the truth.
Posted by: Dr X | May 4, 2007 10:01 AM
Heck, you don't have to go so far as putting up monuments. Just allow accomodations in public bathrooms in air ports where muslims can wash their feet for prayer and watch the Righteous Right hyperventilate.
Posted by: John Pieret | May 4, 2007 10:26 AM
They are going to achieve a legal result they don't want if they actually get their re-hearing. As the story noted, an 'en banc' decision tends to carry more legal weight as precedent than a simple panel decision. So what will end up happening is they will add a substantial precedent _against_ their clearly unconstitutional position that the 10 commandments are A-OK for a monument in the city parks but the Seven Aphorisms are not.
I think this kind of stupid case gets filed because of the "echo chamber" effect of such communities.
Duchesne is a rural Utah city, population 1400. From the demographics of rural Utah, it is a given that the city is 95% Mormon. As for Pleasant Grove, a check of Google Maps found around 90 Mormon churches, and 3 for other faiths in the city. Welcome to 'Happy Valley' (a local nickname for Utah Valley that is a ironic reference to the degree to which the Mormon Church dominates the area).
They have little to no exposure to a diversity of beliefs. So they just don't understand how anyone could find their endorsement of a particular belief system to the exclusion of others to be a problem.
In their minds, to have ruled against their having a 10 Commandments monument while excluding other religions "MUST" be some kind of mistake. Really. Now if they could just find, you know, a legal basis....
I grew up in Utah. I know what I am talking about from personal experience.
Posted by: Benjamin Franz | May 4, 2007 10:53 AM
Posted by: mark | May 4, 2007 12:02 PM
Sweet crap on a stick. Teh intar-tube cannot hack into their children's minds soon enough.
Posted by: stogoe | May 4, 2007 12:06 PM
"This is the problem with the religious right's notions of accomodationism - only their religious views can be endorsed or displayed. Anything else is "clutter"."
I'm glad that we finally have a case that's showing it in flying colors. I'm also glad that these idiotic hypocrites have their balls to the bandsaw. Watching them squirm will be fun,
Posted by: Stuart Coleman | May 4, 2007 12:10 PM
@Benjamin:
I know what you mean. My sister had to move out of Kaysville UT because she did not want her children raised in a monochromatic (I swear I once saw that underneath "Welcome to Kaysville" on the sign as you enter it said "Sure hope you're white!", but it was never there when I looked again...), single-faith community. Bear in mind, she has been a Mormon her entire life, so it is not the Mormonness of the place, it is the sameness. We come from Boston though where diveristy was much greater. She would object to either monument as being "devisive".
My parents are another story. My father has a massive persecution complex, so you would think that he would take the wingnut reading of they are persecuting Christians, but luckily he knows that if the Christian Dominionists get their way, the Mormons are next (OK, maybe after the Scientologists), so he is all about tolerance these days.
Posted by: Anuminous | May 4, 2007 12:34 PM
Good case, the more they shoot themselve in the foot over and over again, the better!
Posted by: Kim | May 4, 2007 5:33 PM
If we were to look at this issue and court cases from a logical financial perspective, everyone could understand the real issue here. From past court cases, similar to these, the "Governmental Agencies" trying to evade the Constitution of the United States are trying to establish a community religion. Or they are trying to be able to decide who gets Free Speech in their community.
These Cities must have lots of money to burn.
Every "Governmental Agencies" that has done this, in the past court cases, have wasted hundred of thousands of dollars in attorney's fees. These attorneys' fees have gone to pay the City attorneys, the law firms they hire, and the Plaintiff's attorneys fees the court orders them to pay.
They could have used their abundance of dollars to create thousands of Ten Commandment Monuments and put one in the front yard of every citizen in the community, so their real issue could be promoted more effectively.
The "Governmental Agencies" could organize some of the citizens of the community that have an "extreme" religious belief. This citizens of the community, could establish a not for profit organization for the betterment of the community. A service organization, like virtue and vice, or a talabanical philosophy and the City, "Governmental Agencies" could retain this talabanical organization to establish and create community projects. The talabanical organization would establish virtue and control vice in the City. This would be possible, because the City's attorneys and laws firms could create a maze of complexity to evade any Constitutional protections, making the City a happy City in a happy Valley of automaton minded citizens.
Posted by: Corky Ra | May 4, 2007 7:56 PM