Dispatches from the Creation Wars

Arguments Against the Summum Case

The Christian Post reports on a brief filed by Liberty Counsel, one of the really bottom of the barrel religious right legal groups, in the Summum cases that are pending before the Supreme Court. These are the cases from Utah where a religious group wants to place monuments to its “Seven Aphorisms” next to monuments for the Ten Commandments that were donated to the city decades ago.

Liberty Counsel makes the same silly argument that the ACLJ has been making in the case on the distinction between private speech and government speech. And just check out the internal contradiction in these two paragraphs:

Liberty Counsel, however, denies this assertion, and notes that the current Ten Commandments display was a private donation by an outside group, and thus does not constitute a public endorsement of religion.

“By accepting donated displays, the city did not open a forum for everyone wishing to display a monument in the public park. The city owned the donated displays, and the city could remove, modify, remake or sell any of the displays,” the group said in a statement.

But if a donated private display becomes government speech after the government accepts the display, this triggers a rather obvious establishment clause problem because the government is endorsing the Ten Commandments. If a donated display in a public park establishes a public forum, as Summum claims, then there is no establishment clause problem or free speech problem (because all religious groups have access to the property).

But the religious right groups are creating a new constitutional problem with their argument. They’re trying to get out of a free speech problem by denying that such monuments are private speech at all but government speech. But doing so then triggers an establishment clause violation because government speech endorsing explicitly religious concepts is forbidden. And then they ignore another critical distinction here:

“If the government were required to accept any conflicting message anytime the government spoke through a donated display, then the Statue of Liberty would need to make room for the Statue of Tyranny or perhaps a statue of Stalin or Adolf Hitler. It would not make sense to force the government to include a display devoted to atheism every time it displays a Nativity scene,” the legal group added.

But the government is not forbidden from endorsing non-religious ideas. The government can and does endorse ideas like democracy and liberty (well….at least rhetorically) and that does not require any balancing of the opposite ideas. But the government is forbidden from declaring religious beliefs to be true. So unwittingly, the position of the religious right legal groups leads inexorably to the obvious conclusion: call it government speech, then ban all such religious displays from public property if you aren’t going to open them up to all religious groups.

Their argument merely trades one constitutional violation for another; my argument eliminates both constitutional violations. Incidentally, briefs from both sides in this case plus other groups can be found here (you’ll have to scroll down to Pleasant Grove City, UT, et al., v. Summum). The brief filed by Americans United, People for the American Way and three other groups makes an argument similar to mine.


  1. #1 R Hampton
    June 26, 2008

    I’d love to see a lawsuit brought by a Catholics against all of these Protestant depictions of the Ten Commandments. After all, it was the Catholics who first confronted the Protestant double-standard 150 years ago, and why we have (private) Catholic – not Protestant – school districts across the nation.

    A Brief Overview of Catholic Schools in America
    National Catholic Educational Association

    The middle of the 19th Century saw increasing Catholic interest in education in tandem with increasing Catholic immigration. To serve their growing communities, American Catholics first tried to reform American public schools to rid them of blatantly fundamentalist Protestant overtones. Failing, they began opening their own schools, ably aided by such religious orders as the Sisters of Mercy, who arrived from Ireland, under Sister Frances Warde, in 1843, and the Sisters, Servants of the Immaculate Heart of Mary, organized in 1845 by Sister Theresa (Almaide) Duchemin, originally an Oblate Sister of Providence, to teach in Michigan. But such successes sparked a bigoted backlash, fomented by such groups as the Know-Nothing Society, committed to wiping out “foreign influence, Popery, Jesuitism, and Catholicism.” Mobs burnt a convent and murdered a nun in Massachusetts in 1834, destroyed two churches in New England in 1854, and, that same year, tarred-and-feathered, and nearly killed Father John Bapst, a Swiss-born Jesuit teaching in Maine and ministering to the Passamaquoddy Indians and Irish immigrants, as well as to other Catholics, including former Protestants who’d converted under his influence.

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