• Reminder: We are in the midst of our first annual Winter Pledge Drive! If you value this blog, its mission, and its content, please consider making a donation to keep The Wild Hunt open, ad-free, and updated daily. Spread the word, and thanks to all who have donated so far!

Even though the American Family Association stumbled from the gate in the kick-off to this year’s skirmishes over religious language and iconography during the Winter holidays (aka “The War on Christmas”), that doesn’t mean other groups haven’t been cowed. Instead it looks like were going to be seeing a rather holy protest at the steps of the United States Supreme Court as Faith and Action and the Christian Defense Coalition stage a live Nativity scene.

“Rev. Rob Schenck, President of Faith and Action, states, “The traditional creche, portraying Mary, Joseph and the Christ Child, along with the angels, shepherds and Wise Men, remind us all of what Christmas is all about. “We like to refer to this effort as keeping Christ Mass in the nation’s Capitol.” Rev. Patrick J. Mahoney, Director of the Christian Defense Coalition, adds, “Sadly, we are seeing an erosion and hostility toward public expressions of faith in the public square.   This is especially true during the Christmas Season. “The Nativity Project and Operation Nativity are reminders that our Constitution provides freedom ‘of’ religion not freedom ‘from’ religion…”

Ah, the old “freedom of” not “freedom from” argument, too bad that commitment to freedom is a mile wide and only an inch deep. As the Green Bay Wisconsin Nativity battle proved, once people actually start demanding real “freedom of”, which means the inclusion of all religions and philosophical points of view on public lands, things start to go a bit haywire for those crusaders for “religious freedom”.

So while the  “you aren’t saying Christmas” boycotts have lost their sizzle, the battle over Christmas religious displays in the public square is still heating up. There are already a couple cases that look like they’re headed for the courts, and it seems like only a matter of time before a Wiccan or atheist decides they want a Winter display next to a Nativity on public land somewhere. Then we’ll get to really test the “religious freedom” resolve of the groups currently dressing up like Joseph and Mary on the Supreme Court’s steps.

A legal gambit in the battles over the separation of Church and State has been that the Christian cross is a “secular” symbol, removed from its original religious meaning by time and history. This has resulted in some rather insulting assumptions by cross-defenders and involves a good bit of historical revisionism. Now with the Supreme Court of the United States hearing arguments in the case of Salazar v. Buono, we may finally see if there can truly be a “secular cross”.

Mr. Eliasberg said many Jewish war veterans would not wish to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.” Justice Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.” “What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?” Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom. Justice Scalia grew visibly angry. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead,” he said. “I think that’s an outrageous conclusion.”

Now the case could be decided narrowly, simply on the legality of the land-transfer that Congress approved to keep the cross standing, or, if Scalia gets his way, the court could decided that Christian crosses can be defined as a “common symbol” of the dead, ending several potential lawsuits over the issue. However, while Christians may welcome a sweeping victory here, Beliefnet founder Steven Waldman warns of the spiritually unwise slippery-slope implications of a “win”.

“…the more you want Christian symbols in the public square, the more you have to prove they’re lacking religious meaning. A question for devout Christians: Do you really want the cross and the creche to become akin to the Christmas tree — or the Easter Bunny? The “secular purpose” trap isn’t the only reason the “pro-religion” position can end up hurting Christianity. Legal cases pressing Christian symbols tend to argue that these efforts are acceptable as long as the government isn’t excluding other faiths. That’s how we’ve ended up with town squares with Menorahs alongside the creches. But this is the ultimate slippery slope. The Courts cannot and should not say that pluralism is limited only to Jews. Over time, Islam, Buddhism, Paganism will inevitably end up having greater public displays, too. That means conservative Christians need to ponder a more subtle theological point. If you believe visible public displays convey important social messages, doesn’t a pluralistic scene convey a second message: that all faiths are equal?“

In other words, a secular cross would create more theological problems for the Christians who desire such a decision than they would care to currently admit. Remember the Green Bay nativity case? You could expect a lot more like that, because other religious groups in America, as they grow in size and prominence, are going to want full inclusion as well. The legal loopholes that Christian advocacy groups are trying to create will eventually, no doubt to their dismay, benefit the Wiccans, Buddhists, and Hindus who won’t be contented to simply stand by and be represented by “secular” symbols of Christianity. They should be careful about how “secularized” they want their cross.

The answer to will SCOTUS save the San Francisco Peaks (from having treated waste-water snow sprayed on what several Native American tribes consider holy ground) is apparently “no”.

“The U.S. Supreme Court today denied certiorari in Navajo Nation v. Forest Service, (Docket No. 08-846). (Order List.) The 9th Circuit in the case held in an 8-3 en banc decision, that the Religious Freedom Restoration Act does not bar the Forest Service from approving the use of recycled waste water to make artificial snow at Arizona’s Snowbowl ski resort, which operates on federal land.”

The Save the Peaks coalition have released a statement on the decision.

“The Supreme Court’s denial of certiorari in the Navajo Nation case is unfortunate to say the least.” Stated Jack Trope of the Association on American Indian Affairs who is working together with DNA Legal Services, representing the Hualapai Tribe, Navajo medicine practitioner Norris Nez and Hopi spiritual practitioner Bill Preston. “It means that the San Francisco Peaks, sacred to so many tribes, will continue to be at great risk from the development approved by the Forest Service that allows treated sewage water to be used for snowmaking. It also means that the Ninth Circuit’s narrow interpretation of the Religious Freedom Restoration Act (RFRA) – an interpretation which in practice will make that law virtually unavailable to protect sacred lands in the states covered by the Ninth Circuit – will stand.”

This is a big deal. It means that questions of how we approach issues of religious freedom and religious rights on land that is a traditional cultural property under U.S. law are dramatically altered (within 9th Circuit jurisdiction). Perhaps the Forest Service have been intentionally dragging their feet in getting the San Francisco Peaks on the National Register because they didn’t want tribal considerations interfering with their sweetheart deals involving the Snowbowl resort?

“The San Francisco Peaks are recognized as a Traditional Cultural Property, although the Forest Service began the designation process several years ago, it has not yet been finished. The Peaks have also been determined eligible for listing on the National Register of Historic Places, yet the FS has done nothing to finish the process.”

At this point, nothing short of direct intervention from the Obama administration can halt the planned development (which includes clear-cutting 74 acres of rare alpine ecosystem & creating a 14.8 mile long pipeline up the San Francisco Peaks to a 10 million gallon storage pond). In the meantime, there is a chance this issue could come to SCOTUS again, due to different Federal Circuit Courts having different interpretations on the limits of the the Religious Freedom Restoration Act.

“This is a setback, but it is not the end. The Obama Administration still has the authority to stop this development and develop policies to ensure that future decisions are more respectful of sacred sites.” stated Jack F. Trope, Executive Director, Association on American Indian Affairs. “Moreover, other circuits like the Tenth Circuit have interpreted RFRA more broadly and efforts to use that law to protect other sacred places will continue. Finally, the struggle over the San Francisco Peaks and the failure of RFRA to protect this sacred place ought to send the message to Congress that it is time for the lawmakers to approve legislation that would strengthen applicable law so that it will better protect Native American sacred places across the country.”

From a moral and religious standpoint, the question remains, how much responsibility does the Federal government have towards protecting and maintaining sacred lands they have seized from Native tribes? It is an issue we need to wrestle with, because if the government and courts rejects pantheist religious views as valid when considering development, we may lose the right to protect other places from desecration in the future. As for the San Francisco Peaks issue, don’t expect the tribes to go quietly now that judicial recourse has been denied them.

“Our way of life is in peril. We will continue to pray and struggle to safeguard mother earth for our cultural survival.”

I doubt this will be the last time I’ll have to report on this matter.

The Supreme Court is holding a private conference this Thursday to decide if they will review a recent decision in the ongoing legal battle between a coalition of 13 Native American Tribal Nations (and various environmental groups) and the National Forest Service (and a ski resort) over the use of treated (but non-potable) wastewater snow on the San Francisco Peaks. A mountain range that the tribes consider sacred land, and that using waste-water on it would be “like putting death on the mountain”. The Obama administration is opposing review of the case, while the petitioners want to remind the government that they have a sacred responsibility towards the land they took from the tribes.

“It is worth remembering that our government took the Peaks from petitioner tribes. It placed the tribes on reservations and pledged to respect their cultures and traditions. It is hardly implausible that Congress passed a law in 1993 providing under these rare circumstances that the tribes’ religious liberty should be respected.”

So far, lawyers and judges haven’t been very respectful towards the tribes opposed to pumping wastewater onto sacred land just so a single ski resort can stay open longer. A Ninth Circuit judge said is was merely a case of “damaged spiritual feelings”, while government lawyers have been outright insulting towards Native belief systems.

“Courtroom observers were dismayed by the lack of cultural sensitivity on the part of government lawyers. After a witness described how the spraying of wastewater to make artificial snow would defile the sanctity of medicinal plants gathered on the mountain, a government lawyer asked if the medicine man knew he could purchase herbs at health food stores. A government lawyer also questioned a witness by going down a long list of sacred sites one by one and asking if a particular site was on federal land. In each case, the witness, a Hopi man, humbly replied, “I don’t know.” Eventually, the witness told the lawyer that his culture doesn’t view land in that way, that there is no concept of land ownership. The lawyer did not acknowledge his statement in any way, but instead went back to the list, unapologetically asking the same questions in the same manner.”

You have to wonder if Barack “Black Eagle” Obama of the Crow Nation knows and approves of what Elena Kagan and the Department of Justice are doing in his administration’s name. Will it damage his popularity among Native American Indians, many of whom supported him in the 2008 elections? If SCOTUS decides to hear the appeal, will it be on a Supreme Court that includes Sonia Sotomayor, a judge who is a seeming advocate for the rights of minority religions?

In 1994, Judge Sotomayor ruled in favor of two prisoners who claimed to practice Santeria, a Caribbean religion that involves animal sacrifice and voodoo, saying that “distinctions between ‘traditional’ and ‘non-traditional’ religions” are “intolerable.”

Whether SCOTUS decides to hear the appeal or not, it could have lasting implications regarding the application of the Religious Freedom Restoration Act, and questions of how we approach issues of religious freedom and religious rights when the land itself is sacred and holy. I’m hoping SCOTUS doesn’t decide to punt on this one, and allows the case to be heard. If not, I guess “screw your sacred land, we want to ski” will be the rallying cry of our government and court system. For more information on this case, check out the round-up of official documents regarding this case at the SCOTUS Blog. You may also want to peruse the official Save The Peaks site.

Now that Obama announced U.S. Appeals Court Judge Sonia Sotomayor as his pick to replace Justice David Souter on the Supreme Court of the United States, you can bet that partisan groups on the left and right will be preparing for a high-profile fight. The SCOTUS Blog doesn’t see any major problems (barring an unforeseen ethics issue) in Sotomayor getting on the bench of our nation’s highest court (Slate agrees), but the process can be long and grueling. I briefly mentioned Sotomayor earlier this month in reference to a scaremongering article about her, but what chilled the heart of the (presumably Christian) conservative writing the piece, made me hopeful should she be appointed.

In 1994, Judge Sotomayor ruled in favor of two prisoners who claimed to practice Santeria, a Caribbean religion that involves animal sacrifice and voodoo, saying that “distinctions between ‘traditional’ and ‘non-traditional’ religions” are “intolerable.”

Meanwhile, the Institute For Public Affairs has done a quick round-up of her opinions on religious liberty and finds her stances “very encouraging”. They also reference the prisoner free exercise case involving Santeria.

Campos v. Coughlin (1994). In this case, prison inmates asserted a free exercise right to wear multiple strands of beads under their clothes, as part of their practice of the Santeria religion. Judge Sotomayor upheld their claim.

For a more robust listing of Sotomayor’s religion decisions, check out this post from Religion Clause. For an in-depth examination of her entire judicial career, check out the SCOTUS Blog. I’m personally heartened at Sotomayor’s willingness to fight for the rights of religious minorities (especially in prison), I envision that her voice will become vitally important as some key issues involving the rights and freedoms of religious minorities make their way to the Supreme Court.

After spotlighting three news items yesterday, I find that I have another three to share with you today. First up, we have a profile of the Denver Catholic Archbishop Charles J. Chaput. Chaput is receipient of this year’s Canterbury Medal, The Becket Fund for Religious Liberty’s highest honor. But while Chaput thinks that the United States is “a nation that only really makes sense in a religion-friendly context”, it is clear from his acceptance speech that he doesn’t mean friendly towards all religions.

The archbishop said “the bedrock” of our common moral heritage was the First Commandment, “I am the Lord your God; you will not have foreign gods before me.” “All of our Western beliefs about the sanctity of life, human dignity and human rights ultimately depend on a Creator who guarantees them. In other words, we have infinite value because God made us. No human being or political authority can revoke that infinite value. Only God is God.” Any other pretention to answering human suffering and hope is “finally an impostor and a road away from God’s light.” Archbishop Chaput said this view of the value of human life was in direct contrast to a contemporary American spirit in which science can “comfortably” coexist alongside “superstition or barbarism.” As the Western moral consensus weakened alongside the progress of science, people did not become more ethically mature. “The 20th century was the bloodiest in history, and today the occult is flourishing right alongside our computers and Blackberries,” he said.

It seems somewhat strange that a group fighting for the rights of Santeros to perform animal sacrifice would give their “highest honor” to a man who most likely thinks “occult” religions don’t merit the same freedoms and considerations as the dominant “world religions”. Indeed, in his comments he seems to hint that “occult” beliefs are the enemy of religious freedom and liberty. An odd attitude for someone who once served on the United States Commission on International Religious Freedom. I guess it just goes to show you how elastic terms like “religious freedom” and “religious liberty” are.

We turn from religious freedom honours, to the potential honour of becoming one of the most powerful judges in the United States. With the pending retirement of Supreme Court Justice David Souter, speculation has been rampant as to who President Obama will name to replace him.  One name being bandied about is U.S. Appeals Court Judge Sonia Sotomayor. While not officially named as a possible appointee, conservatives are already scouring through her decisions (and the decisions of other possible candidates) looking for enough controversy to mount an effective grass-roots challenge. One of the possible talking points should she be appointed is that she is against distinctions being made between faiths in court decisions concerning religion.

In 1994, Judge Sotomayor ruled in favor of two prisoners who claimed to practice Santeria, a Caribbean religion that involves animal sacrifice and voodoo, saying that “distinctions between ‘traditional’ and ‘non-traditional’ religions” are “intolerable.”

Frankly, this just makes her seem more appealing to advocates of true religious equality. It is also a stance taken by the Supreme Court (including Antonin Scalia), who saw no distinction between the religious rights of Santeria practitioners and adherents of more “mainstream” faiths. In fact, the (in)famous case of Church of Lukumi Babalu Aye v. City of Hialeah was decided by the Supreme Court in 1993, one year before her 1994 decision. Sotomayor most likely looked to this decision as a guidance on her ruling. I can’t imagine this decision would gain any real traction in the controversy department, but then certain groups are big fans of what I like to call the “Witch Gambit”. Using someone’s non-traditional religion as a basis to deny them custody, convict them of crimes, or discredit them as a witness.

In a final note, the San Francisco Chronicle puts the spotlight on journalist and fellow Pagan blogger Victoria Slind-Flor who is being honored as the “Keeper of Light” at this year’s 8th Annual Pagan Festival & Pride Parade in Berkeley.

“Slind-Flor is a practical witch, grounded in the real world. She worked as an editor and reporter for newspapers in Seattle, New Orleans and Los Angeles before becoming an online business reporter in San Francisco, specializing in copyright law, a field they don’t teach at Hogwarts. When wearing her other hat – the pointed one – she teaches workshops, gives tarot readings, and hangs with the coven. Being Keeper of the Light is the best thing that could happen to a witch, Slind-Flor said, and she will try to be worthy of the honor when the parade rolls through Civic Center Park. She is practicing what she calls her Queen Victoria wave, and she is very glad to be riding in a float, as her legs don’t work as well as they used to and the broom thing cannot be counted on. “I’m probably a symbol of the graying of our community,” she said.”

Congratulation to Victoria on this honor. The festival is tomorrow (Saturday) if you happen to be near Berkeley. Also, if you’re curious, last year’s “Keeper of the Light” honoree was Max Dashu of the Suppressed Histories Archives.

Yesterday the Supreme Court handed down a decision regarding the case of Pleasant Grove City, UT v. Summum, The competing issues at hand were if a government body has the right to unrestricted free speech (including religious speech), and the idea that public land equals a public forum (with the government as caretakers, not gatekeepers). An argument that emerged when the New Age/UFO religion Summum wanted a monument to their Seven Principles placed in the same park as a Ten Commandments display. The unanimous opinion of the court was that in this particular instance the local government’s free speech claims trumped Summum’s free speech claims.

“The case centered on Pleasant Grove City, Utah, which displays a Ten Commandments monument in a public park. A religious group called Summum sought the right to erect its “Seven Aphorisms” in the park as well. When city officials declined, Summum sued, arguing that its free-speech rights had been violated. The Supreme Court analyzed the case under free-speech law, ruling 9-0 that it would be impractical to force communities to permanently erect every monument they are given.”

So is this loss a setback for religious minorities seeking equal standing with the dominant monotheisms? Not particularly. The decision here was a narrow one, and Supreme Court justices and analysts have both opined that the case could very well be re-heard on Establishment Clause grounds.

Justice John Paul Stevens provided this assessment of the Supreme Court’s new review of the constitutionality of placing religious monuments on government property: “…the effect of today’s decision will be limited.” In fact, in the 15 weeks between the Court’s hearing on Nov. 12 in Pleasant Grove City v. Summum (07-665) and the final decision Wednesday, one thing remained absolutely unchanged: the real dispute here was not about free speech, but about church-state relations. But that was not even argued. At the oral argument, Chief Justice John G. Roberts, Jr., told a lawyer for the small Utah city defending  its policy on a Ten Commandments monument in a city park: “You’re just picking your poison, aren’t you?  I mean, the more you say that the monument is government speech, to get out of the Free Speech Clause, the more it seems to me you’re walking into a trip under the Establishment Clause.”

To quote court-watcher Dahlia Lithwick, if Pleasant Grove City “wins this case as a result of the court’s free speech jurisprudence, [they] will be back in five years to lose it under the court’s religion doctrine.”. This was echoed by Americans United executive director Rev. Barry Lynn who stated that “the case should have been analyzed under church-state doctrine” instead of on free-speech grounds. So expect to hear about this case again very soon, Summum’s lawyers are already gearing up to challenge the ruling on Establishment grounds, and the justices seem to be warning Pleasant Grove to act fast or lose the next round.

Although the Supreme Court case centered on the Free Speech clause of the First Amendment, the Establishment Clause loomed in the background. Alito noted that his decision does not imply that there are not restrictions on government speech. “For example, government speech must comport with the Establishment Clause,” he said. Justice David Souter said the connections between the Establishment Clause and government speech have not yet been figured out. He said it would be “in the interest of a careful government” to have more than one monument to avoid an appearance of establishing religion.

Pleasant Grove should heed Justice Souter, for while arch-conservative Justice Antonin Scalia says that this monument’s circumstances are “virtually identical” to one allowed to stand in Texas, that Ten Commandments existed in a continumm of over 40 other monuments, dulling Establishment claims. Ultimately, neither side here can claim a lasting victory. Summum may not be able to erect their monument (which could have radically changed the management of public lands), but in the long run Pleasant Grove will have to have to either add more monuments to avoid Establishment Clause challenges, or take down all religiously-oriented monuments (the path favored by Americans United). This decision brings the case back into the more familiar (if sometimes complex) area of past religious monument cases. That might not result in a big dramatic shift in legal opinion as it would have if Summum had won here, but it will most likely follow the course of rulings that have been slowly secularizing our public spaces for a post-Christian and multi-religious American future.

Longtime readers of this blog will remember that I have been harping on the case Pleasant Grove City v. Summum, argued before the Supreme Court yesterday, as being an important test case on the issue of government-sponsored religious displays, and the rights of minority religions regarding full inclusion.

“The outcome of this case is going to be a big deal for religious minorities. Remember the battles over Pagan inclusion in government-sponsored religious displays in Green Bay and Ohio? A SCOTUS decision here could all but force local government bodies to enact a fully-open policy concerning religious displays on government-controlled property. In other words, the local city council or mayor couldn’t pick and choose which religious displays are worthy to be placed with a Nativity Scene or Ten Commandments monument. It would be all or nothing.”

Since oral arguments in the case yesterday, the issues of governmental “free speech”, the full inclusion of minority faiths in the public square, and the separation of Church and State are getting quite a bit of attention from the mainstream press. The Wall Street Journal focused on the Church of Summum’s search for legitimacy in our society, interviewing religious scholars like Sarah “Earthly Bodies, Magical Selves” Pike about the group.

“Sarah Pike, a religion scholar at California State University, Chico, says that beyond its Egyptian trappings, Summum is a ‘UFO religion’ with some ideas borrowed from Mormonism, the religion into which Mr. Ra was born. They are ‘very much under the New Age umbrella, with an interest in Gnostic Christianity,’ she says. ‘The use of crystals, beliefs in aliens or UFOs, meditation practice and the turn to ancient Egypt are common in other New Age religions.’”

Over at Slate.com, Dahlia Lithwick reminds everyone of the First Aphorism of Religion Cases*, describes how this case is a total mess, and has a feeling that if Pleasant Grove City wins, they’ll eventually lose.

“Summum isn’t before the court as a religion case. It was brought as a free speech case, and, as Jay Sekulow of the American Center for Law and Justice learns about three minutes into oral argument this morning, if he wins this case as a result of the court’s free speech jurisprudence, he will be back in five years to lose it under the court’s religion doctrine. The more zealously the city claims ownership of its Ten Commandments monument, the more it looks to be promoting religion in violation of the Constitution’s Establishment Clause.”

Meanwhile the Religious New Service seemed to focus on how the SCOTUS judges wrestled with all the different hypotheticals involved in ruling either way.

“The justices, in turn, asked questions that led to an additional range of hypothetical situations. Justice Stephen Breyer wondered if a government park could permit sculptures from Democratic sculptors but not Republican ones. Justice Samuel Alito asked if the government could refuse to list names of certain deceased soldiers on a memorial because it disagreed with their views … Justices grappled with arguments over whether the monuments in question are ‘government speech,’ ‘private speech’ or a mixture of both … Justice David Souter indicated that this consideration of private and governmental speech may be leading to new ground for the court, saying, ‘We haven’t had this kind of challenge before,’”

Everything in this case seems to come down to a battle between the idea of a government body having the right to free speech (including religious speech), and the idea that public land equals a public forum (with the government as caretakers, not gatekeepers). Either decision could have far-reaching affects on how religion expression is handled on public land. So far, and I’m no expert on taking the temperature of SCOTUS, things seem to slightly favor the New Agers (though the justices do seem concerned that “weird stuff” would litter our public parks if Summum wins), which could, in turn, dramatically change how local governments approach religious displays. We’ll have to wait and see where the judicial winds blow.

* According to Dahlia Lithwick, the First Aphorism of Religion Cases is: Only the religious convictions of other people are weird. Yours are perfectly rational.

The Washington Times reminds us that the Supreme Court’s upcoming docket (they resume hearing cases in October) will feature a case that could have far-reaching implications for minority religions.

“Religious doctrine is on the docket with Pleasant Grove City v. Summum, in which the Supreme Court is asked whether the city of Pleasant Grove, Utah, can display the Ten Commandments on a monument in a city park as a matter of free speech. The small Summum sect argues that if the city displays the Ten Commandments, it also should display their belief’s Seven Aphorisms. City officials refused, which sent the dispute to the Supreme Court. “The betting money is that Pleasant Grove will come out ahead in this,” said Tom Goldstein, a partner in the law firm of Akin, Gump, Strauss, Hauer & Feld.”

I discussed Pleasant Grove City v. Summum in some depth back in April. The court’s ruling could ultimately decide if local government can control which (religious) monuments are erected, or if public parks should be treated more as an “open forum”.

“The outcome of this case is going to be a big deal for religious minorities. Remember the battles over Pagan inclusion in government-sponsored religious displays in Green Bay and Ohio? A SCOTUS decision here could all but force local government bodies to enact a fully-open policy concerning religious displays on government-controlled property. In other words, the local city council or mayor couldn’t pick and choose which religious displays are worthy to be placed with a Nativity Scene or Ten Commandments monument. It would be all or nothing.”

Pleasant Grove has an interesting defense of claiming that ruling against them would hamper government’s right to free speech.

“Pleasant Grove argues that its selection of privately donated monuments for display in Pioneer Park fits within this long tradition of government speech. As the speaker, the city argues, it is under no obligation to modify its message to accommodate Summum’s speech; instead, Pleasant Grove ‘is entitled to say what it wishes’ through its monuments and can ‘take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted.’”

In other words, if you force them to remove the Christian monument, or force them to include other religious monuments, it would damage their rights to “free speech”. This argument is echoed in a massive number of Amicus briefs from state governments, veteran’s organizations, and conservative Christian advocacy groups. Meanwhile, Americans United, assorted Humanist groups, and several liberal religious groups have filed Amicus briefs arguing that this case shouldn’t be heard on free-speech grounds, and is instead all about the Establishment Clause.

“The Rev. Barry W. Lynn, Americans United executive director, said the case raises an important conflict over the value of religious neutrality. “It’s not the government’s job to display the symbols of any faith,” Lynn said. “When government officials allow religious groups to place permanent monuments on public land, the government is accountable for the message. “Our government,” he continued, “should not — and, under our Constitution, may not — pick-and-choose among religions. This principle stands at the very heart of church-state separation.” The AU brief asserts that government cannot play favorites among religions and deny a minority religious request because of discomfort with the less-known religious views.”

In other words, concerning religion in the public square, government should just stay out of it altogether. Interestingly absent among the many briefs are Hindu, Buddhist, and Native American groups (groups that have banded together in the past to file Amicus briefs).One wonders what assorted religious minority communities think of this case. Would they welcome a win for Summum here? Or would they prefer the stance taken by Americans United?

A win for Summum seems increasingly unlikely, but would a win for Pleasant Grove City mean a win for Christian religious expression to the exclusion of other faiths? I guess we’ll have to wait and find out. Opening arguments are scheduled for November 12th.

While we wait for the Supreme Court to decide if public parks and lands are an “open forum” for donated monuments (specifically religious monuments), another case has arisen dealing with many of the same issues. It seems that the Red River Freethinkers in North Dakota are suing the city of Fargo after refusing to allow them to erect a “sister monument” next to a 10 Commandments monument on the City Hall mall.

“Opponents of Fargo’s Ten Commandments monument have filed a civil lawsuit against the city, asking that the granite marker be removed. The attorney for the Red River Freethinkers, Bruce Schoenwald, filed the complaint in federal court Friday. It accuses the city of “unconstitutional conduct.” The lawsuit contends the Freethinkers’ rights were violated last year when Fargo refused to allow the group to put up its own monument near the Ten Commandments monument on city property. The Freethinkers also are seeking unspecified damages and attorney fees.”

What would be engraved on this monument? A line from the Treaty of Tripoli, a historical document unanimously approved by the US senate and signed by our second president John Adams*. A line that warms the hearts of religious minorities and secularists everywhere.

“…the Government of the United States of America is not, in any sense, founded on the Christian religion…”

You can understand then why the City Commission, who were pressured by local Christians to not remove the 10 Commandments monument, would be hesitant to allow a “sister monument” that questions the status of America as a “Christian nation”. Which brings us back to the case currently pending before the Supreme Court, Pleasant Grove City, Utah v. Summum. This case should definitively decide if those overseeing public lands can favor one religious or philosophical monument over another.

“A SCOTUS decision here could all but force local government bodies to enact a fully-open policy concerning religious displays on government-controlled property. In other words, the local city council or mayor couldn’t pick and choose which religious displays are worthy to be placed with a Nativity Scene or Ten Commandments monument. It would be all or nothing.”

If the SCOTUS case ends up leaning towards public lands being “open spaces” the city of Fargo will have to either remove all religious monuments, or allow the Freethinkers their Tripoli monument. It will also further challenge the notion that displays of the 10 Commandments are somehow “not religious speech” because some Christians think our own laws were founded upon them. Recent SCOTUS rulings make it clear that 10 Commandments monuments are only admissible as part of “a broader moral and historical message.”

Fargo’s reluctance to compromise puts them on uneasy legal footing. They are clearly favoring one viewpoint over another, and it could end up costing the city quite a bit of money. Regarding the larger issue, the days of anti-Communist patriotic Christian fervor are over. The national mood that once allowed the government to insert “Under God” into the pledge of allegiance, and litter the landscape with 10 Commandments monuments (many of which were placed to help promote a film) is long past. The era of a religious “don’t ask, don’t tell” norm (if you weren’t a Protestant Christian) has given way to a multi-religious society in an increasingly post-Christian world. Christians can retain their place in the public forum, in the interchange of ideas, but only so long as they are inclusive of other viewpoints and religions sharing that same space.

* John Adams, a Unitarian, also called the Christian cross an “engine of grief” and insisted that America was founded by “the natural authority of the people alone, without a pretence of miracle or mystery”.