Beacon Broadside

Frederick S. Lane is an expert witness, lecturer, and author who has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. His fourth book, The Court and
the Cross: The Religious Right’s Crusade to Reshape the Supreme Court , is forthcoming from Beacon Press this spring; he is beginning work on People in Glass Houses: American Law, Technology, and the Right to Privacy (Beacon 2009). For additional information, please visit www.FrederickLane.com.

It’s been a busy couple of weeks for the Ten Commandments. The big news, of course, was the death of actor Charlton Heston, best known for his leadership of the National Rifle Association and his 1956 portrayal of Moses in Cecil B. DeMille’s epic film, The Ten Commandments.

Attracting somewhat less attention was the announcement by the United States Supreme Court a few days before Heston’s death that it had decided to review the ruling in the case of Pleasant Grove City v. Summum, a long-running legal battle over the public display of the Ten Commandments in a city located 45 minutes south of Salt Lake City. But the two events, surprisingly, are not unrelated.

Like many municipalities around the country, Pleasant Grove City has
a stone monument inscribed with the Ten Commandments located in a
municipal park owned and maintained by public funds. The monument was a
1971 gift to the City by the Fraternal Order of the Eagles, part of the
group’s decades-long effort to improve the nation’s youth through
exposure to the Ten Commandments. Summum, a religion founded just four
years later, asked Pleasant Grove City for permission to install a
pyramid-shaped monument inscribed with Summum’s Seven Aphorisms,
but the city turned down the request. Early last year, however, the
Tenth Circuit ruled that if the City continued to display the Ten
Commandments, it could not legally block other religions from
installing monuments to their faith.

The Eagles’ Ten Commandments program started modestly enough in the
early 1940s: the Eagles distributed framed copies of the Commandments
and urged local officials to hang them in municipal offices,
courthouses, and local schools. But shortly before the release of his
film, Hollywood’s premier showman heard about the Eagle’s Ten
Commandments program and, in typical DeMille fashion, thought that it
could be done bigger and better. He encouraged the Eagles to begin
commissioning granite monuments depicting the Ten Commandments on two
stone tablets. Sensing the promotional possibilities, DeMille even
dispatched stars of his film to unveil monuments around the country.
Heston,
for instance, was an honored guest at the unveiling of a Ten
Commandments monument at the International Peace Garden on the border
of North Dakota and Canada in the summer of 1956.

The granite monuments proved remarkably popular. In a video e-mail
from the steps of the U.S. Supreme Court a short time ago, attorney Jay
Sekulow — head of Pat Robertson’s American Center for Law and Justice
— said that there are 5,000 Ten Commandments monuments around the
country. He warned that if Pleasant Grove City loses its appeal, every
one of those monuments is threatened with removal. For months now, the
ACLJ has been sending out increasingly fervent pleas for cash to help
fund the cost of its handling of Pleasant Grove City’s appeal to the
Supreme Court.

The decision by the Roberts Court to hear this case should be
worrisome to those who believe in a strong separation of church and
state. The Supreme Court agreed to consider three questions: 1) whether
the Ten Commandments monument remained the private speech of the
Eagles, or became "government speech" due to the City’s ownership and
control of it; 2) whether the City’s municipal park is a "public forum"
under the First Amendment, thus allowing other private parties to
install monuments; and 3) whether the City is immediately required to
permit the installation of Summum’s monument.

Just three years ago, a badly-splintered Court ruled 5-4 that a
similar monument on the grounds of the Texas State Capitol was
permissible. The decisive vote was cast by Justice Stephen Breyer, who
based his decision on a number of factors that persuaded him that the
Texas Ten Commandments monument was more secular in nature than
religious. One of the dissenting justices, Sandra Day O’Connor, has
since been replaced by the far more conservative Samuel Alito.

The ACLJ is not making any argument in the current case that the Ten
Commandments monument is secular and thus permissible. To the contrary,
Sekulow and the ACLJ enthusiastically embrace the idea that the display
of the Ten Commandments is government speech, and that cities and
states have the right to endorse — to the exclusion of all others —
the precepts of a single religious faith.

There is a real risk that when the Supreme Court hands down its
decision in this case, probably in the late spring of 2009, it will
announce a rule that will make it easier for municipalities and state
governments to display the Ten Commandments in a variety of public
locations. Just how common and prominent such displays will be depends
on the precise wording of the Court’s opinion; the oral arguments over
the winter will offer some insights into which way the Court is
leaning. A decision by the Court in favor of Pleasant Grove City will
be a major victory for the Religious Right, and a clear indication that
their decades-long efforts to reshape the federal judiciary are finally
beginning to bear fruit.

You may also enjoy reading Frederick Lane’s posts on Mitt Romney and the War on Christmas,  or Jay Wexler on the reticent Clarence Thomas.