Imagine the Court Being Helpful

3/1/2009—Last Wednesday’s decision by the United States Supreme Court in Pleasant Grove City, Utah v. Summum did not advance our understanding of the Establishment Clause because the majority opinion by Justice Alito resolutely refused to discuss the Establishment Clause. The case was decided on uncontroversial free speech grounds.

In the case, Summum, a Gnostic Christian group, asked the City if it could donate a monument to be erected in a public park that already contained a Ten Commandments monument that had been donated by another private group in 1971. The City refused and the Supreme Court upheld that refusal.

The Court’s rationale, and there was no dissent on this point, was that when the government puts up something like a monument, the resulting display becomes the message of the government, not that of the private group if any that donated the monument. As “government speech” the government is usually permitted to endorse its own message and omit messages by everybody else, including here, Summum.

But as everyone in the case was well aware, there are limits on permissible government speech. One such limit is that the government may not prefer one religion over another. Reasonably thinking that might be the case here, the City preferring the Bible’s account of Sinai over the account offered by Summum, the religious group asked, if the Ten Commandments monument is government speech, what is it the City is trying to say? The real answer might have been, “only the Bible is true.”

Justice Alito sidestepped this Establishment Clause minefield by arguing that monuments don’t have simple messages. He pointed to the “Imagine” mosaic donated to New York City in memory of John Lennon. Then he quoted the lyrics of the song.

This was a beautiful moment in the opinion, and I mean that sarcastically. If Alito had quoted the lyrics of the Ten Commandments instead of tripping down memory lane with John Lennon, it would have been painfully obvious what message Pleasant Grove was probably offering. As readers of this blog know, what is needed is an inclusive account of these religious displays that does not endorse one religious tradition. Thus far, the Court has lacked the imagination and generosity to help America out of its culture war deadlock. For more, see my manuscript, For the Establishment of Religion.