Government speech, individual speech, & public religion

Government speech, individual speech, & public religion September 3, 2015

A came across an unusually lucid discussion of the legal issues that loom behind some of the religion-in-the-public square cases.  As Noah Feldman explains, the courts have made a distinction between individual speech, in which pretty much anything goes, and government speech.  The government also can say pretty much what it wants to, which explains why it can choose to forbid confederate flags on license plates, or to permit pro-life slogans on license plates while forbidding pro-abortion slogans.

The main restriction on what a government can say is anything that could be construed as establishing a religion.  A government can choose to accept a Ten Commandments monument on public property.  But if it does, it has to accept similar monuments from other religions, so as to prove it is showing no favoritism.  This is why atheist and secularist groups are no longer trying so much to get religious symbols removed.  Rather, they are trying to get other monuments–Satanic, atheist, pagan–added so as to stand side-by-side with the Christian symbols.  That could work for a polytheistic society, as in St. Paul’s Athens or the Pantheon in Rome, but Christians specifically reject that, as in the “no other gods before me” part of the Ten Commandments on those monuments.

Feldman concludes that the choice must be either displays of religious diversity or no religious symbols at all on the part of the government.   Isn’t the latter alternative more faithful to the first table of the Ten Commandments?  Wouldn’t the religious diversity displays promote a syncretism that flies in the face of Christianity?  Do you see any weaknesses in Feldman’s argument, excerpted after the jump? 

From Noah Feldman, “Arkansas’s Mixed Religious Messages,” BloombergView:

Arkansas, which is poised to erect a new Ten Commandments monument on the grounds of its state capitol, has just rejected a request by a Hindu group to erect a statue of the god Hanuman there. Constitutionally, the rejection is permissible: The U.S. Supreme Court permits the government to pick and choose what symbols it wants to project in public space. But turning down a statue of the Hindu deity with the jaw of a monkey also calls into question the constitutionality of the Ten Commandments statue — because the government can’t endorse one religion at the expense of others.

Confused? I hope so. If you aren’t, you get an A in constitutional law — but something’s gone wrong with your logic function. The Supreme Court’s twin doctrines on government speech and endorsement of religion are in tension with each other, as the Arkansas situation shows.

Let me take a moment to explain the law as it stands. In an important 2009 case called Pleasant Grove v. Summum, the Supreme Court said that statues in public parks count as “government speech.”

When it speaks, the government is generally free to endorse or reject any viewpoint it wants. This is very different from when the government restricts private speech — then it’s prohibited by the First Amendment from favoring one viewpoint over others. Thus it matters hugely whether a particular act of expression is called government speech, where almost any rule goes, or private speech, where almost all limitations are barred.

This doctrine is the reason Arkansas can say no to the Hindu group: because the state is speaking when it chooses monuments for the state capitol. In the Summum case, too, the local government refused to erect a religious monument proposed by members of the Summum religion. It’s also why the court this past June said that Texas could refuse to put a Confederate battle flag on its license plates.

The catch is that, even when the government is speaking, there’s at least one constitutional limit on what it can say: It can’t endorse religion. The reason is the establishment clause of the Constitution as interpreted by the Supreme Court. Arkansas can’t put up a statue saying, “Christianity is the right religion and Hinduism isn’t.”

“But wait,” you say, pulling out your Bible. Isn’t that exactly what the Ten Commandments mean when God tells the Israelites “You shall have no other gods before me”? Doesn’t a stone monument of the Ten Commandments communicate precisely that Judaism or Christianity is true and that other polytheistic faiths — like Hinduism — are false? . . .

The upshot is that, if religious people want to express their values symbolically under the current legal regime, they probably need to embrace religious diversity. If they don’t like that option, they can choose to keep their religion private.

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