Glib Fortuna has a post at STACLU about a recent ruling in an Oklahoma ten commandments case that went against the ACLU. And in this case, I'm going to agree with him (not with the ridiculous "oh my god, the ACLU is so evil" rhetorical style with which he and every other STACLU devotee writes, but with the conclusion). This is a case that should never have been brought, and the judge was correct to rule against them. Here are the facts of the case.
On the county courthouse grounds in Haskell County, Oklahoma there are numerous monuments to various things, including monuments to those who died in various wars, a monument to the Choctaw Indians, and monuments to various graduating classes from the local high school. In 2004, a monument to the ten commandments was added to the lawn. None of these monuments were paid for with public money, all were erected by private groups with their own money, including the ten commandments monument.
As far as I'm concerned, that's all you need to know to reject an establishment clause claim in the case. I think the Supreme Court should take the whole mass of monument, creche, nativity scene and other public display rulings that have made such a bizarre mishmash of judicial standards and replace them with two simple rules:
1. No public money can be used to erect public religious displays unless they contain most or all of the major religious traditions as part of an historical display about religions in general.
2. In any public forum, all religious and non-religious groups must have equal access to erect such displays.
It should be that simple. If you're going to open a public park or courthouse grounds to community groups for such displays, they must be paid for privately and all groups must have equal access. That will eliminate any reasonable establishment clause concerns and put an end to the endless litigation - a clear, brightline standard that anyone can understand. And in the Haskell county case, both criteria are met - it's a designated forum with equal access, and no public money was spent on it.
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Most of the nonsense the US right-wing pushes about Ten Commandment displays and government entanglement with religion would be eliminated if they were to honestly ask themselves one simple question: Would I approve this were the religion Islam instead of Christianity, or were the display the shahadah instead of the Ten Commandments? The simple truth is that most of the time the religious right pushes for such things, they would instead be up in arms against it, were these substitutions made. And therein lies their hypocrisy and lack of respect for the first amendment.
Whether one agrees or not with where the ACLU draws the line, it at least exhibits a consistent view that doesn't favor one religion over others.
Why must we allow religious displays on public grounds such as courthouses in the first place? Do the churches not own their own property where they can place as many displays as they wish? Why the constant need to invade our public spaces with their propaganda? I'm willing to bend a little on public parks or other public areas that are not directly affiliated with any government entity. But really, is a courthouse the best place to allow religions to have a pissing match over who can spend the most money on their gawdy displays? Maybe the county can set aside a piece of land not occupied by any government building, call it a free-fire zone, and the various cults can battle it out with each other over who will survive the coming apocalypse while the rest of us can safely ignore them from a distance.
I know some people feel that as long as you allow all religions equal access to the courthouse then you aren't violating the first amendment. But is that realistic? Are all religions really going to be able to take advantage of that equal access and be able to compete with those mainstream religions that have plenty of disposable cash? I think it is much better to keep all religions out of the courthouse and let them compete on their own playing fields.
Russell:
Exactly. Here in Ogden, UT a couple of years ago, where we had an Eagles Ten Commandments statue in a downtown park [paid for by the Eagles], another religion [Sunum? Sunim? Something like that.] applied to erect a monument, same size, same park, at its own expense, to its seven fundamental principles. Mayor said no. They sued under 14th Amendment, equal protection clause. And won. Court said, simply, Ogden could ban all religious monuments from the park, or it could permit all on the same terms. It could not pick and choose which ones were acceptable and which were not. Our idiot Mayor directed the city attorney to appeal. And of course, lost again. Whereupon the City decided to remove the Ten Commandments monument in order to prevent the erection of monuments to other faiths. Which was, of course, exactly the point you made.
Bruce:
One of the positive things government does is provide fora for free speech, and much of the value is tied up in the fact that they must be content-neutral. This is the reason so many groups like to demonstrate at the Lincoln Memorial or the Supreme Court's front steps, and really, we are a better nation for it.
When we are talking permanent displays, yes some extra considerations apply, such as the space made available for each display, or appropriateness in terms of cultural or historical context. If there is a competition between religions or denominations for the biggest or God-iest display, I'm not aware of it.
Once the forum is opened, the gov't has no grounds to exercise viewpoint discrimination, as Flatlander points out. That's the way it should be, and the way it works out in much of the country. Lots of other places haven't figured it out yet, but will with time.
The Ogden court's decision reported by Flatlander100 that the city "...could ban all religious moumnets from the partk or it could permit all on the same terms" is what should apply in every case. And, if it were applied uniformly, we would see no Ten Commandment monuments or plaques near any courthouse in the country. The promoters of these monuments and plaques are seeking the courthouse venue precisely because it does imply endorsement. But it they have to admit heathens (any other religion) then they'll take a pass. I wish they would, because it sure would spare the country a lot a grief without harming any version of Christianity.
Bruce wrote:
We don't have to allow anyone to put up a display on public grounds, unless it is a traditional public forum. But if the government allows public grounds to be used by community groups in this manner, it cannot discriminate against religious groups (likewise, if it allows one religious group to use the grounds, it cannot discriminate against other religious groups. If the grounds are open for use to community groups, religious and non-religious groups must have equal access to them.
The trouble with "bright line" rules is that they can usually be dimmed. And that, of course, leads to more court cases.
What do you do when the public access area runs out of room (e.g., various evangelical groups could all ask for access, effectively freezing out the non-evangelicals)?
I guess one could institute some sort of lottery system and time limit.
But then, again, what do you do when one particular religious group effectively "buys more lottery tickets" than others?
I suspect that any system can be boogered by those intent on pushing their agenda.
I have an important quibble with you, Ed, about thread titles like this one, as only in the most remarkably narrow sense do you "agree" with those lying, psychotic assholes and demented fuckwits at STACLU. The fact that you agree on the decision made, and that happens, in this one case, to match their in-every-other-way-wrong position.
I can't detect any sign of irony in your posting, and it begins to creep towards the sort of wrongheaded "give them credit whenever and wherever possible - even though we know their intentions are evil" that groups like creationists use, judo-like, against us.
STACLU is emphatically NOT "right," any more than that famous broken clock is "right" twice a day - it's simply a coincidence.
Glib Fortuna is as much of a weak-minded, artless dodger as any of the other tools who contribute "articles" to STACLU. When I challenged him here, he not only failed to approve my response to his comment #3, but deleted the initial comment I made to which his #3 responded (you can see where he quoted me). There was nothing profane about my comments -- evidently he just didn't appreciate the fact that they systematically and succinctly lay waste to his claims. Glib is just another deluded ranting machine who simply brushes aside viewpoints that expose the vacuity of his positions.
While I am bothered by religious displays on public property, I would agree that if monuments by non-governmental groups are to be allowed on public alnd (and I would not allow them, it's the common land, not the Kiwanis' land) all monuments must be allowed.
I now call on atheist groups to identify public spaces where religious monuments are cited and develop a generic, easily reproducible monument to freethinking (and perhaps science) to be sited in each and every place they can get a sponsor.
I also call on teh Adult Video Association to produce a similar monumant listing their HAll of Fame performers (with special emphaiss on any local stars) to be sited in the same public spaces.
Let's see how many get sited and how many public free-speech "gardens" get plowed under.
A friend found a link from the local Oklahoma paper http://www.newsok.com/article/2833086/?template=news/main which includes some facts about the intent of this monument. I wonder if these are at all significant?
According to that story, the monument was specifically funded by churches, and specifically intended to advance a religious message. And the commissioners knew that when they approved the placement of the monument.
"Bush's church and 17 others raised $2,500 for an 8-foot granite slab, engraved with the Ten Commandments and the Mayflower Compact. The monument was erected Nov. 5, 2004 on the front lawn of the Haskell County courthouse.
"Regardless if we were required to take it down or not, God got the glory," Bush said.
Bush said his intention was to spread a religious message. Bush said he shared that intention when he asked commissioners to approve the monument's placement in 2004."
If the commissioners specifically and intentionally approved a religious message, that seems to me to be significant, and seems to me to be unconstitutional. At least it makes me wonder.
Oh, and also...has anyone read this decision? Judge White is quite a jokester!
Lettuce wrote:
I agree with this. In fact, I'd like to see a monument to the Bill of Rights put up in every courthouse in the country. That's the true decalogue.
Joe wrote:
No, it's not legally relevant what the goal of the groups who paid for it was. Of course their purpose was religious; it couldn't possibly be otherwise. But as long as all religious groups and non-religious groups have equal access to put up their own monuments, regardless of motivation, there is no establishment clause problem.
I'm a bit of a broken record on this subject, but I'll try again: The Lemon test is backwards, and life would be much simpler if we applied a simple bright-line rule:
The government may not spend any money that benefits religion in any way; so long as money is not involved, people may say or do whatever they wish. If there is no public money invested, it really is just a personal opinion.
Oh, the decision itself is gold, much better than that judge in Galveston.
http://www.telladf.org/UserDocs/HaskellOpinion.pdf
kehrsam wrote:
I think this is worded a bit too broadly. There needs to be a distinction between directly and indirectly benefiting religion. For instance, if the fire department responds to a fire at a church, that's public money benefiting religion, but that's clearly not an establishment clause problem. I think the same is true of school voucher programs, as in the Ohio program that the Supreme Court upheld in Zelman. If it's a generally applicable program and the decision on where to spend the money is made by the individual citizen and not the government, then there is no establishment clause problem with it (just as a person on food stamps can use them to purchase food for a passover meal, or to take a dish to a church potluck).
Ed Wote:
I see the scholl voucher programs as an establishment, as well as bad use of the public resources, especially the way many of them (like the one here in Milwaukee) are currently constituted.
I've yet to see a public school go out of business shortly before (or during) the school year, as we've seen in Milwaukee and (as of late) DC. Additionally, the results coming from the voucher schools don't seem to equal the results coming from the public schools (which are forever being derided as faiing even when some, such as the ones in Wisconsin, in general, manifestly are not.) And then, again, the public schools have several layers of oversight and standards to meet (including parental oversight by the PTAs and PTOs) where our voucher schools do not.
But to the monument question:
Land has a value. In most places we call that rent or rents. Public land has a value. Allowing things to be placed on them free does not negate the rent value of the land.
While I'm not in favor of arguing that these rent values be considered a governmental gift to organizations, they are in some sense that nonetheless.
So, like-minded atheists and cival libertarians, as well as those of you religious minded with the same state-church objections, lets get the alternative monuments going.
Uh, apprently blew the blockquotes up there...
None of that was kehrsam, and only the first paragraph was Ed.
Sorry.
kehrsam writes, "The Lemon test is backwards, and life would be much simpler if we applied a simple bright-line rule: The government may not spend any money that benefits religion in any way.."
The problem is that that would end up discriminating against religion, which certainly isn't the intent of the 1st amendment. Consider a public school or park or other facility, whose space is made available to community groups on weekends: chess clubs, reading groups, historical reenactment groups, political groups, whatever group signs up. Your "bright line" would mean one of two things: either (a) religious groups would be distinguished adversely, as uniquely unqualified to use this public space, or (b) states and communities could not provide such public spaces. The first alternative is clearly contrary to the first amendment. The second is an undesirable constraint on government, and certainly not required by the Constitution.
There is another issue, also. By imposing such a rigid constraint, your "bright line" would require the government to determine what is and isn't a religion. The Lemon test, by being more neutral, doesn't require this determination. It is easier to know that government money doesn't favor religion, than to know that it doesn't benefit religion.
BTW, you'll find no one more opposed to religious faith than me. I make PZ look like a piker in this regard. But I also have great respect for the US Constitution, and I cannot rationally read it to mean that religions should be treated less than other groups by virtue of being religious.
Okay, yes, guys, you are correct, and I did not mean to imply that government spending cannot indirectly benefit a religious group in the same manner that it benefits any other group of citizens.
So if buddhists want to use the school gym after hours to hold a meeting, great! The gym was built for the school's use, but being built, there is no reason for it not to be a center of the community.
Similarly, laws of general application are okay. So if the legislature mandates that books are to be purchased for schoolchildren, it is okay to share those with non-profit private schools (and some would argue for the for-profit ones as well, but I demur). The benfit is to the student, not the school or the denomination which runs it.
However, if the government is paying for the microphone, the government cannot take a stand on religious issues. Even this does not stop a government official from stating at the outset of his results some disclaimer that the following are his personal remarks, and he is not speaking for the government.
As you can see, as I would have it, free speech reigns supreme. I would keep government from spending tax money for installing monuments, but if a private religious group wanted one on public property, that's okay, so long as every other group has the same opportunity. School boards shouldn't attempt to replace science with theology (and rather poor theology at that).
If you think I am allowing too much freedom for fundamentalists, I would have you know that I attend a fundamentalist church, and they don't like my proposal, either.
Lettuce said:
"I now call on atheist groups to identify public spaces where religious monuments are cited and develop a generic, easily reproducible monument to freethinking (and perhaps science) to be sited in each and every place they can get a sponsor."
Ha Ha Ha! The idea that one could find "like minded atheists" who would agree on the form that such a monument would take just leaves me laughing right out of my chair. I imagine that any actual proposal would be met by a blizzard of objections by most, leaving nothing the majority could agree on.
Isn't one of the major premises opposing "organized" religion that one can think for oneself, unencumbered by any predetermined organizational principle? The idea that non-believers should "organize" to come up with a monument to be displayed on the public square is the antitheses of the idea that "freethinkers" don't believe in organizations as such.