Ten Commandments

Ten Commandments

Those of you in the Boise area, or regular readers of this blog, know that several years ago, the city of Boise removed a Ten Commandments monument from Julia Davis Park. They did so because the Rev. Fred Phelps, a long-time liberal political activist before he was disbarred, and became Mr. Homophobe, demanded the right to put up a monument filled with anti-homosexual materials in the same park, unless Boise removed the Ten Commandments.

Boise chose to remove the Ten Commandments monument--even though there was case law that established that Phelps didn't have a leg to stand on, and there were lawyers prepared to defend Boise pro bono. But Mayor Bieter, who is a Democrat, used this as an excuse to remove the Ten Commandments monument, since this has become something of a symbol to local Democrats of our benighted state here--allowing something identified with the religion of 80% of the population of Idaho to survive.

The U.S. Supreme Court subsequently upheld the Texas legislature having a Ten Commandments monument on the grounds of the statehouse in Van Orden v. Perry (2005)--a situation even more fraught with potential Constitutional problems than its presence in a city park. And a couple of days back, a case exactly on point was decided by the U.S. Supreme Court in Pleasant Grove City v. Summum (2009). The Court held that there was no obligation for the city to add any monument that a crackpot group wanted in the park, just because the Ten Commandments monument was there.

What is astonishing about this case is that while there was some difference of opinion about why, there was complete and total agreement from all nine justices--even the raging liberals--about the result. Justice Alito's opinion explained that when the government speaks (as opposed to providing a public forum), it is expressing its opinion, and is under no Constitutional obligation to present all points of view.

We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

...

The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.

I was quite amused by one example of the absurdity of where this "all points of view must have an equal opportunity for expression if the government puts even one point of view up" might lead:

Respondent contends that this issue “can be dealt with through content-neutral time, place and manner restrictions, including the option of a ban on all unattended displays.” Brief for Respondent 14. On this view, when France presented the Statue of Liberty to the United States in 1884, this country had the option of either (a) declining France’s offer or (b) accepting the gift, but providing a comparable location in the harbor of New York for other statues of a similar size and nature (e.g., a Statue of Autocracy, if one had been offered by, say, the German Empire or Imperial Russia).

I have a feeling the Statute of Autocracy today would look a lot like George Soros.

As Alito's decision points out, there are limits beyond which the government may not go, for example, with respect to creating an Establishment of Religion (which the Ten Commandments monument clearly does not)--but that the major limitation is that the voters can throw the rascals out:

The involvement of public officials in advocacy may be limited by law, regulation, or practice. And of course, a government entity is ultimately “accountable to the electorate and the political process for its advocacy.” Southworth, 529 U. S., at 235. “If the citizenry objects, newly elected officials later could espouse some different or contrary position.” Ibid.

What this means is that Mayor Bieter's claim that the city removed the Ten Commandments monument for Constitutional reasons is nonsense. They did it because Rev. Phelps gave them an excuse to do what they already wanted to do: remind the people of Boise that this is not a Christian city. Pretty clearly, the unwillingness of the voters of Boise to throw the rascals out over this--and even their unwillingness to overturn the decision by referendum--shows that Bieter was probably right. Democrats are a dominant force in Boise, and therefore, Christianity is destestable.

I'm disappointed that Bieter and the majority of the council decided to remove the Ten Commandments monument. There was no good reason for the city to spend the money that it did on removal, or on the subsequent lawsuits. This was simply an attempt to assuage the sizeable fraction of Boiseans who find it destestable and offensive to think that Christianity has any significance to this place. But they clearly have the authority to do so, as the Pleasant Grove City decision clearly finds. But if you live in a city where Christianity is not yet destestable, you can use this decision to take away the excuses of people like Mayor Bieter.