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.