November 2008 Archives

Barry, you are right on target.  It is certainly up to President-elect Obama and his wife to make the best decision possible for the education of their two daughters.  This is a private, family matter. But, as we both know, the media is anxious to make a story where there is none.

There's no secret that Sidwell Friends has the kind of procedures and planning in place to handle high-profile students.  The last presidential child to attend that school was Chelsea Clinton, who was there a decade ago.  And many years before the daughter of President Nixon (Tricia Nixon Cox) went to school there.

If the pundits are smart, they will let this issue go.

The simple truth is that there will be many changes ahead when President-elect Obama takes the oath of office in January.  And, it's also true that the lives of the First Family will change dramatically.  More scrutiny.  Less privacy.  Of course, it comes with the territory.  As President-elect Obama recently told 60 Minutes:  "One of the challenges I think that we're going to be wrestling with is how to stay pretty normal."

Longtime family friends predict the Obamas will do everything they can to maintain a 'normal' life inside the White House.  But as anyone knows, and as the Washington Post points out, that will not be easy.

According to the Washington Post, President-elect Obama has decided to send his two daughters to the Sidwell Friends School.  This is a wise decision.  Earlier in the week both the Post and syndicated columnist Cal Thomas had editorialized that he should send the children to the District's public schools.  The pundits were arguing that to do otherwise would be hypocritical because Obama is opposed to school vouchers.

Give me a break.  There is no voucher program in the country that would give enough money to any significant number of parents to send their child to Sidwell Friends or any other expensive private school. Parents who do receive vouchers in the few cities where they are available are gradually finding that most of the private schools they can actually afford aren't doing any better at academics than public schools.  The President happens to make a lot more money than most of us.  This gives him options we don't have.  What he chooses to do with his income is his business, and he can spend more on education or more on chocolate bars.  Big deal.

Moreover, can you imagine, Jay, the amount of extra security that we would be paying for if his daughters went to a public school?  Sidwell Friends, which also has experience with the children of "celebrities", will also be more likely to be able to protect the privacy and relative normalcy of childhood for Obama's kids.

Jay, will you join me in an "amen" for good parenting, and a chorus of "boo" for editorial writers who are weighing in on a strictly private matter. (As an aside, I see that Matt Drudge is shocked that Obama's car is not green and is built like the protective tank it is supposed to be.) 

Barry, the reason that you had "many moments of doubt" during the argument is that the Pleasant Grove City v. Summum case is about the meaning of a different provision of the First Amendment: "Congress shall make no law . . . abridging the freedom of speech."

 

This case deals with the government's authority to craft its own message and, as you recognize, "[w]hen government 'speaks' about best presidents or embraces the principle of liberty, it has every right to reject alternative views." Here, Pleasant Grove owns and displays a variety of artifacts, monuments, etc. in its Pioneer Park that have historical relevance to the community or were donated by groups or individuals that have longstanding ties to the community. Among these is a Ten Commandments monument donated by the Fraternal Order of Eagles almost 40 years ago that, in the Mayor's words, would "remind citizens of their pioneer heritage in the founding of the state." By contrast, Summum has acknowledged that it has no ties to the community and its proposed monument has no historical relevance to the community. It is undisputed that the criteria used to accept or reject monuments are unrelated to any religious doctrine.

 

In short, this case is about whether private parties can require the government to alter its message, and it sounds like you agree with our position on that point. There is no First Amendment Establishment Clause claim in this case (which would be inconsistent with Summum's Free Speech claim) but, in any event, a hypothetical claim would be similar to the one that the Court rejected a few years ago in Van Orden v. Perry, 545 U.S. 677 (2005) (plurality). It does not violate the Establishment Clause for the government to include the Ten Commandments among other historically relevant monuments, artifacts, pictures, plaques, etc. for a secular reason such as "remind[ing] citizens of their pioneer heritage in the founding of the state."

Jay, I must say publicly what I told you privately after the oral argument in the Pleasant Grove City v. Summum argument.  You did a very fine job.  You also know, though, that I believe it was a great job defending an indefensible position.

Several of the justices join you in one fundamental error: religious expression is not the same as expression on political, economic or cultural matters.  How do we know this?  It is right there in the framing of the First Amendment.  "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...".  There is no comparable prohibition against "establishing" (as in preferring or promoting or endorsing) any other kind of activity.  Indeed, we have elections where we the people decide what kind of  secular "values" to embrace based on arguments of candidates.  Should we "share the wealth"?  Should we foster the wearing of flag pins?  Should we embrace "English only" in our schools?

So, of course, the government doesn't have to add Ronald Reagan to Mount Rushmore or accept a "statute of tyranny".  When government "speaks" about best presidents or embraces the principle of liberty, it has every right to reject alternative views.  However, it is supposed to be scrupulously neutral in regard to religion.  If you are correct that Pleasant Grove City "selected" a religious message by accepting the Ten Commandments monument 36 years ago, then it violated a fundamental principle that we don't let governments be selective about the religious views it adopts--choosing one while rejecting "competitors".

As I was watching the argument, I did have many moments of doubt that I was on this planet and not on some alternate astral plane.  Since the case had not been argued as an "Establishment Clause" case, the justices had to try to avoid that "elephant" in the room.  This is all about a religious monument; it is not about a selection process for library books or pieces of art in a museum.  Their analogies to such matters were strained to the breaking point.

I hope the justices see the wisdom of rejecting the claims of both sides in this case and sending it back to trial on its proper ground: is this an unconstitutional endorsement of some religions and rejection of another.  Frankly, I thought the New York Times editorial board had it right when it noted: "The founders found this sort of religious preference so odious that they included a specific provision in the First Amendment prohibiting it".  ( I also appreciated that the paper praised the friend of the court brief filed by Americans United and the American Jewish Congress in this regard.)

We'll see what you "hath wrought" sometime in the spring.

It was an hour of spirited, lively debate before the Supreme Court.  And, now that oral arguments have concluded and the case is in the hands of the Justices, I am hopeful that the Supreme Court will determine that the appeals court got it wrong and uphold the authority of Pleasant Grove City, Utah to determine what's included in its park.

 

In presenting oral arguments on behalf of Pleasant Grove City, I was pleased that our arguments resonated with the Justices.

 

We have argued all along that the 10^th Circuit decision, if left unchecked, would have sweeping ramifications nationwide - putting long-standing historic and patriotic displays and monuments across the country at risk.

 

One of the key illustrative arguments in our briefs put this issue into clear perspective:  "Accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny," as we contended in our opening brief.

 

I was pleased to see Chief Justice Roberts amplify our argument when he pressed the attorney who represented the group Summum:  "You have a Statue of Liberty. Does that mean we have to have a Statue of Despotism?  Or do we have to put any president who wants to be on Mount Rushmore?"   That's exactly what's at stake in this case.

 

A transcript of the oral arguments is available here.

 

Historic monuments and plaques serve as the institutional memory of many communities and cities throughout the United States.  This is one of the ways that governments tell the story about the unfolding drama of the United States which includes the history and heritage of our nation.  It would be tragic if governments were faced with a choice of either removing these monuments or accepting all monuments, including those that not only do not reflect our history, but also hold in condemnation some of our greatest American heroes. 

 

Already there are groups demanding to put up memorials chastising our soldiers and saying they deserve what they got when they were wounded or killed.  This is one of the reasons the United States Government filed briefs on our side and participated with me in the oral argument.

 

When Pleasant Grove City accepted the donated monument of the Ten Commandments by the Fraternal Order of Eagles nearly 40 years ago, the city took ownership and control of the monument, making it government speech.  And, as government speech, the city government is free to select among the messages it wants to convey to its citizens.

 

It's also clear that this case involves the Free Speech Clause of the First Amendment, not the Establishment Clause.  Even if the Establishment Clause were at issue, which it isn't, the city's acceptance of the Eagles' monument is no more an endorsement of religion, as I told the Court, than is the depiction of Moses holding the Ten Commandments clearly visible in the frieze of the Supreme Court's own chamber.  The fact is that the city government of Pleasant Grove hasn't established anything by accepting the Ten Commandments monument.

 

I am hopeful that the high court will reverse the 10^th Circuit.

Your latest post on Summum should make it clear to lawyers and non-lawyers alike that this case was, is and should forever be seem as a case about whether the government can prefer some religions over others and promote their...

Barry, as you note, the Summum group did not bring an Establishment Clause challenge in this case.  In this First Amendment case, we believe the Supreme Court is faced with an easy choice:  preserve sound precedent involving the well-established distinction...

Pleasant Grove City, Utah, has a website.  It also has a park.  In that park is a monument containing the Ten Commandments.  Some years back, a religious group called Summum asked to put up its own monument in the same...

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