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Last week, a unanimous U.S. Supreme Court upheld the constitutionality of a Ten Commandments monument in a city park in Utah. The monument had been privately donated 40 years earlier. It was one of a dozen old signs and markers in the same park. A new religious group called Summum sought permission to put up a monument displaying its Seven Aphorisms. The city refused. Summum then sued under the First Amendment. It charged the city with violating the free-speech clause by discriminating against its Seven Aphorisms. It also threatened to charge the city with violating the religious establishment clause by displaying the Ten Commandments alone. This left the city with a hard choice: take down the Ten Commandments or put up the Seven Aphorisms.

The Supreme Court would have none of it. In last week's case, Pleasant Grove City v. Summum, the court treated the Ten Commandments monument as a form of permissible government speech. A government "is entitled to say what it wishes" and may select certain views in favor of others, Justice Alito wrote for the court. It may express its views by putting up its own tax-paid monuments or by accepting monuments donated by private parties whose contens it need not fully endorse. In this case, city officials had earlier accepted a Ten Commandments monument on grounds that it reflected the "[a]esthetics, history, and local culture" of the city. The free-speech clause does not give a private citizen a "heckler's veto" over that old decision. Nor does it compel the city to accept every privately donated monument once it has accepted the first. Government speech is simply "not bound by the free-speech clause," the court concluded, or subject to judicial second-guessing under the First Amendment. Government officials are "accountable to the electorate" for their speech, and they will be voted out of office if their views cause offense.

It helped the Pleasant Grove court that there were a dozen monuments in the city park, only one of which had religious content. It also helped that this was a 40-year-old monument that had never been challenged in court before. That allowed other Supreme Court justices to concur in this surprisingly unanimous decision. But the case turned on the characterization of the Ten Commandments monument as a form of government speech. That trumped countervailing concerns about religious establishments or private speech rights. And that shifted the judgment about the propriety of maintaining such religious monuments from the courts to the people.

This is better reasoning than the court has offered in its earlier cases on religious symbols in public life. In some of these earlier cases, the court had allowed religious symbols and ceremonies to withstand First Amendment scrutiny only if they were bleached and bland enough to constitute a permissible form of "ceremonial deism." Symbols and rituals of this sort, Justice O'Connor wrote, serve to "solemnize public occasions, express confidence in the future, and encourage the recognition of what is worthy of appreciation in society." This, in my view, is a dangerous species of constitutional exorcism. In other earlier cases, the court had allowed government to display religious symbols only if they were sufficiently diluted and buffered by nonreligious symbols of comparable size and greater number. For every holy family in a county crèche, there had to be a herd of plastic reindeer; for every bust of Moses in a courthouse, a frieze of founding fathers. This is a mandatory form of postmodernist cluttering.

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March (Web-only) 2009, Vol. 53

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