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Who's free speech?

A religious display will test whether the 1st Amendment protects a government decision.

April 08, 2008

When the Supreme Court ruled 46 years ago that official prayers in public schools violated the 1st Amendment, it infuriated those who claimed that public institutions should reflect the fact that this is "one nation, under God" -- the God of the Jewish and Christian Scriptures, that is.

In recent years, however, supporters of religion in the "public square" often have taken a different tack, arguing not that this is a Christian (or Judeo-Christian) nation but that individual believers have a free-speech right to express their religious views on government property. For example, the American Center for Law and Justice, a public-interest law firm founded by religious broadcaster Pat Robertson, is "dedicated to the ideal that religious freedom and freedom of speech are inalienable, God-given rights."

What government may not do, the high court said as long ago as 1947, is "set up a church [or] pass laws which aid one religion, aid all religions, or prefer one religion over another." Given that precedent, the state of Texas argued a few years ago that a Ten Commandments monument on the grounds of the state Capitol didn't violate the 1st Amendment because it was part of a "museum-like setting" that featured other messages. Besides, the "driving purpose" of the display was to symbolize secular law. By a 5-4 vote, the court upheld the display.

Last week, the Supreme Court agreed to hear another Ten Commandments-related case. A federal appeals court ruled that Pleasant Grove, Utah, which displays a privately donated Ten Commandments monument at a city park (on a patch of land ceded to a private party), must also make room for the Seven Aphorisms of Summum, the principles of a faith that was founded by a former Mormon and is headquartered in Utah. Thanks in part to the late Charlton Heston, the Ten Commandments are familiar to most Americans; not so the Seven Aphorisms (including No. 2: "As above, so below; as below, so above").

That might change if Summum is allowed to display them in the park, but Robertson's group is urging the high court to rule that Pleasant Grove can say no -- because messages in a public park are government speech, not private speech. Therefore, Pleasant Grove can agree to display the Ten Commandments but reject the Seven Aphorisms, just as it could display a model of the Statue of Liberty but reject a "Statue of Tyranny."

Whether or not this argument convinces the court, it seems to cast aside the contention that religious expression on public property is a matter of individual, not government, expression. As Aphorism No. 3 says: "Nothing rests; everything moves; everything vibrates."

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