Well, Jay, the Supreme Court got it partially right yesterday by conceding the obvious: that when a city accepts any monument from a private party and puts it up as a permanent display in a park, that represents “government speech.” It concluded that the city controls the messages it wants to convey to the public. Similarly, it recognized that there remain constraints on government speech, including the principles of equal protection and the Establishment Clause. This part of the decision was why groups like the American Humanist Association hailed it.
that may make people wonder if the justices can tell an apple from an
orange. The justices claim that acceptance of a monument doesn’t
necessarily mean that it embraces the same message as the donor
intends. For example, they note that a monument in New York’s Central
Park which contains the word “Imagine” as a recognition of the late
John Lennon is susceptible to many meanings beside the one the late
singer incorporated in his words. I’ll buy that. However, the Ten
Commandments aren’t the lyrics of a song; they have a well-established
and singular significance as the ethical and theological cornerstone of
Judaism and Christianity.
clear from the concurrence by Justices Scalia and Thomas that they
don’t believe Summum has any recourse under the “no establishment”
principle because this Ten Commandments monument is of the same type
and vintage as one which a 5-4 majority of the court upheld in Van Orden v. Perry.
I am not so sure of that–and I’m quite confident that other Fraternal
Order of Eagles monuments that stand alone, not surrounded by monuments
of other kinds, will still be challenged as unconstitutional promotions
Indeed, this case was so
obviously never a “free speech” case in the first place. It should
have always been seen as the Establishment Clause case it was.
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