"I should have the right to introduce my daughter to the concepts of adultery and coveting one's spouse."

"It shouldn’t be one of the first things she learns to read in her kindergarten classroom."

Said John Litzler, general counsel for the Texas Baptists Christian Life Commission, quoted in "Public schools would have to display Ten Commandments under bill passed by Texas Senate/The Senate also passed a bill that would set prayer and Bible reading times during the school day" (The Texas Tribune). 

On the pro side, Lt. Gov. Dan Patrick said: "I believe that you cannot change the culture of the country until you change the culture of mankind. Bringing the Ten Commandments and prayer back to our public schools will enable our students to become better Texans."

I like the way Litzler is invoking parental rights, which, on other issues, are so performatively treasured by social conservatives.

"I encourage you to take a stand for our core principles and for what is right. These critical times require us to come together..."

"... to reject bigotry, sexism, and intolerance," said Condoleezza Rice, speaking as "a native daughter" who "at heart, remain[s] an Alabaman who loves our state and its devotion to faith, family, and country."

Which side is she on?

It is imperative for Americans to remain focused on our priorities and not give way to side shows and antics. 

Now, she's saying "Americans," not "Alabamans," and she's using the word "imperative." That sounds like an elite outsider, lecturing. And she is an elite outsider, having got out. But she was speaking in Alabama, at the Invest in a Girl Celebration at the Von Braun Center, in Huntsville.

It's hard to tell which direction her abstraction points. It's the anti-Moore forces that have put on the "side show and antics," right? Or is Roy Moore's whole public persona a "side show" with "antics"? (I'm thinking of his 10 Commandments routine and pandering about sexual "perversion.") Maybe Rice means that both sides are distracting voters with side issues. She says "focus[] on priorities." Does that mean focus on what legislation you want Congress to pass? Or does she mean personal morality?

She continues:

I know that Alabamans need an independent voice in Washington. But we must also insist that our representatives are dignified, decent, and respectful of the values we hold dear.

Which candidate is the "independent voice"? And does that "But" mean that the one who's not the independent voice is the one who's "dignified, decent, and respectful of the values we hold dear" or is she just saying we want both things? And what are "the values we hold dear" — not dating and kissing underage girls or not aborting babies? Is Rice trying to be the master of ambiguity?

She switches to the bland value of just voting:

Please exercise your right to vote - a privilege won by the sacrifices of our ancestors. 

There's also a right not to vote. And a privilege not to vote. Many very sensible and good people believe in not voting. Some people have a religious scruple against voting,* some have the comic/distanced attitude expressed in the old line "I don't want to encourage them,"**  and some are  maintaining neutrality so that they can analyze everything better.***

Condi concludes:

Sustain the central ideals and values that make our country a beacon for freedom and justice for the sake of Alabama and for the good of the United States of America.

I think she's trying to say something without saying anything — trying to be appropriate in an elevated setting in the strange, specific state where she grew up (and Denise McNair did not).
____________________

* Wikipedia on "Religious rejection of politics":

Many Taoists have rejected political involvement on the grounds that it is insincere or artificial and a life of contemplation in nature is more preferable, while some ascetic schools of Hinduism or Buddhism also reject political involvement for similar reasons. In Christianity, some groups like Jehovah's Witnesses, the Amish, Hutterites, and the Exclusive Brethren may reject politics on the grounds that they believe Christ's statements about the kingdom not being of the world mean that earthly politics can or should be rejected.

In other religious systems it can relate to a rejection of nationalism or even the concept of nations. In certain schools of Islamic thinking nations are a creation of Western imperialism and ultimately all Muslims should be united religiously in the umma.... Likewise various Christian denominations reject any involvement in national issues considering it to be a kind of idolatry called statolatry. Most Christians who rejected the idea of nations have associated with the Christian Left.

** Some of the best comedians take this position, often with better lines than the old joke I quoted above. For example, George Carlin:

"I have solved this political dilemma in a very direct way: I don't vote. On Election Day, I stay home. I firmly believe that if you vote, you have no right to complain. Now, some people like to twist that around. They say, 'If you don't vote, you have no right to complain,' but where's the logic in that? If you vote, and you elect dishonest, incompetent politicians, and they get into office and screw everything up, you are responsible for what they have done. You voted them in. You caused the problem. You have no right to complain. I, on the other hand, who did not vote -- who did not even leave the house on Election Day -- am in no way responsible for that these politicians have done and have every right to complain about the mess that you created."

I know: the joke there probably is that he does vote, and you're an idiot if you don't.

*** Scott Adams has an April 2016 post on "The Value of Not Voting":

Anderson Cooper of CNN says he probably won’t vote in the coming election. He says voting would bias him when he covers political news. I agree.

I call it the joiner problem. The minute you take a side, you start acquiring confirmation bias to bolster your sense of rightness. Objectivity is nearly impossible once you commit to a team.

The way confirmation bias works is that you can’t see it when you’re in it. Other people might be able to observe the bias in you, but by definition you can’t see it in yourself. The act of voting causes a sort of psychological blindness.

I would be in this group if I weren't a longtime devotee of the ritual of voting (and maybe if, like Cooper and Adams, I didn't live in a swing state) but I do decline to decide until the time to vote arrives, and I have at least twice picked my presidential candidate as I walked to my polling place.

"Perhaps the longer a violation persists, the greater the affront to those offended."

Wrote 4th Circuit Judge Stephanie D. Thacker, responding to dissenting Chief Judge Roger L. Gregory, who said that the fact that the 40-foot cross had gone unchallenged for 90 years is a reason to let it stay where it is, on a highway median in Prince George’s County.

WaPo reports.

The initial challenge in Maryland was brought by the American Humanist Association, a Washington-based group that represents atheists and others. The group did not dispute the monument is a memorial, but said in court that a giant cross on government property sends a message of exclusion in violation of the First Amendment....

At oral argument last December, Thacker and Wynn suggested the legal issues could be resolved outside of court by moving the site of the cross — or by cutting off the arms of the cross to form an obelisk.

What message is sent by the government's cutting off the "arms" of a cross?! Talk about a cure worse than the disease. Were these judges joking?

I'm linking to the Washington Post because that's where I first saw the story, but I was confused by its statement that the cross "has marked a major intersection in Prince George’s County for 90 years" and "had been public property for 50 years without a constitutional challenge." Here's the actual judicial opinion, with the statement "the Cross has stood unchallenged for 90 years."

If the Post is leaving such glaring mistakes, what does that suggest about about the things that are hard to notice and check? The linked article has been up since 2:57 PM yesterday. Does nobody over there at least try to clean up embarrassing shoddiness?

Also, now that I'm reading the opinion, I see that the idea of cutting off the "arms" of the cross seems to have come not from the judges but the appellants. Footnote 7:

Appellants later clarified their desired injunctive relief as removal or demolition of the Cross, or removal of the arms from the Cross “to form a non-religious slab or obelisk.” [Joint Appendix] 131.

This question of giving special respect to old monuments goes back to something Justice Breyer wrote in one of the 10 Commandments cases in 2005. Breyer's vote was the deciding vote, and as I explained back in 2011, when issue of the day was "Big Mountain Jesus":

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

That's the prevailing Supreme Court precedent to which we can compare the new 4th Circuit case. Think about that quote in the post title: "Perhaps the longer a violation persists, the greater the affront to those offended." But the longer the monument persists, the more taking it down feels like a message of hostility to religion.

Or do you think the people watching the arms cut off a cross would see the symbolic meaning as the enforcement of Establishment Clause values?

By the way, the obelisk originally "symbolized the sun god Ra, and during the brief religious reformation of Akhenaten was said to be a petrified ray of the Aten, the sundisk."


"Joseph Sells Grain" by Bartholomeus Breenbergh (1655).

The struggle to purge religion from public view will go on forever, because there is just too much religion embedded everywhere. To try to remove one thing is to create something else:

"A man yelled 'Freedom!' as he crashed his vehicle into Arkansas' new Ten Commandments monument early Wednesday..."

"... nearly three years after he was arrested in the destruction of Oklahoma's monument at its state Capitol, authorities said."

In the video [on Michael Reed's Facebook page], the sky is dark and the Arkansas Capitol's dome is visible. Music is heard followed by a female voice, likely on the radio, saying, "Where do you go when you're faced with adversity and trials and challenges?" The driver is then heard growling, "Oh my goodness. Freedom!" before accelerating into the monument. The vehicle's speedometer is last shown at 21 mph (33 kph) and then a collision can be heard. Arkansas' monument fell from its plinth and broke into multiple pieces as it hit the ground. The debris had been cleaned up by midmorning Wednesday....

Arkansas' granite monument weighed 6,000 pounds (2,721 kilograms). It was installed Tuesday morning on the southwest lawn of the Capitol with little fanfare and no advance notice. A 2015 law required the state to allow the display near the Capitol, and a state panel last month gave final approval to its design and location.

By the way, in the Biblical story, Moses breaks the 10 Commandments tablets. Did you ever understand why? There are many explanations. Here are 4 explanations. 

"Crews, wearing masks to cover their faces, worked under a heavy police presence starting at 3 a.m. to dismantle the statue..."

... of Jefferson Davis, in New Orleans.

[The city spokesperson] said the law enforcement officials took extra precautions because of “consistent threats, harassment and intimidation tactics” surrounding the removal.

Some protesters carrying Confederate flags shouted “cowards” and “totalitarianism” as it was removed....

Other works expected to be removed are a bronze statue of Gen. Robert E. Lee that has stood in a traffic circle, named Lee Circle, in the city’s central business district since 1884, and an equestrian statue of P.G.T. Beauregard, a Confederate general. Because of the threat of violence, the city would not release details on the timeline for when the remaining two statues would be removed.

ADDED: The statues are not getting destroyed. They're being warehoused, potentially to be displayed at some point in a museum setting, buffered by contextualizing historical materials. So this is not like the Taliban blowing up the Bamiyan Buddhas. Nor is it a case of a court dictating that a monument must come down. (My thoughts drifted back to Justice Breyer's decision against requiring the removal of the 10 Commandments monument on the Texas statehouse grounds.)

In New Orleans, we have the political branch of government making a decision about the design of shared public space. The people, acting through government, have the power to redesign their spaces to express their current values. Those who object to the new decisions have a right to protest (but not to commit or threaten acts of violence). They lost elections. Let them try to win in the future by arguing that the statues should be moved out of the warehouse and back to the public square (or simply that a dignified and accurate historical museum should be built).

We've talked before on this blog about removing statues from public places. We've seen it done for aesthetic reasons (where the honored person looked ugly), and we've seen it for political reasons:

Iconoclasm. If you're inclined to reach back into history, you will, perhaps, find it everywhere. From the Wikipedia article "Iconoclasm," here are "The Sons of Liberty pulling down the statue of George III of the United Kingdom on Bowling Green (New York City), 1776":



And I can't look at that and not think about the statue of Saddam Hussein that our military tore down in Bagdhad in April 2003. And what of all those monumental statues of Vladimir Lenin that came in for destruction when the Soviet Union dissolved. Would you like to see them all removed?

I know there's at least one still standing, because the NYT, just a couple days ago, ran a story cooing over an aging American couple who are using Airbnb to live in various European cities and the slideshow features the man, dressed in shorts, like a child, and standing, like a child, knee-high to "this statue of Lenin in Lithuania." The hand of the smiling child-man reaches out to encircle the index finger of Soviet dictator. In another photo, the woman, in a short skirt, poses at the feet of a giant Stalin. This one too is "in Lithuania." We're told there's "a sculpture garden." Isn't that nice?

I need to do my own research to find out about "Grūtas Park (unofficially known as Stalin's World...)... a sculpture garden of Soviet-era statues and an exposition of other Soviet ideological relics from the times of the Lithuanian SSR."

Founded in 2001 by entrepreneur Viliumas Malinauskas, the park is located near Druskininkai, about 130 kilometres (81 mi) southwest of Vilnius, Lithuania.... Its establishment faced some fierce opposition, and its existence is still controversial.... The park also contains playgrounds, a mini-zoo and cafes, all containing relics of the Soviet era. On special occasions actors stage re-enactments of various Soviet-sponsored festivals.

So there's an alternative to iconoclasm.

New Orleans needs its Grūtas Park.

"Big Mountain Jesus" survives an attack by the Freedom from Religion Foundation.

The 3-judge 9th Circuit panel was split, with Judges N.R. Smith and John Owens in the majority.

Smith and Owens found that the U.S. government had a secular purpose: "the statue’s cultural and historical significance for veterans, Montanans, and tourists; the statue’s inclusion in the National Register of Historic Places; and the government’s intent to preserve the site 'as a historic part of the resort.'"

And the majority had 6 reasons for rejecting the notion that the government was "endorsing" religion:

(1) there is nothing in the statue’s display or setting to suggest government endorsement; the twelve-foot tall statue is on a mountain, far from any government seat or building, near a commercial ski resort, and accessible only to individuals who pay to use the ski lift; (2) the statue’s plaque communicates that it is privately owned and maintained — “it did not sprout from the minds of [government] officials and was not funded from [the government’s] coffers”; (3) besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message. The mountain’s role as a summer and winter tourist destination used for skiing, hiking, biking, berry-picking, and site-seeing suggests a secular context...

That's not the usual way we spell "sight-seeing," but I guess it's a site... and here comes a cite:

... the location “does not readily lend itself to meditation or any other religious activity,” and the setting “suggests little or nothing of the sacred,” Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment); (4) the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures; (5) local residents commonly perceived the statue as a meeting place, local landmark, and important aspect of the mountain’s history as a ski area and tourist destination; and, (6) there is an absence of complaints throughout its sixty-year history, see Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment) (reasoning that the monument’s forty-year unchallenged history “suggest[s] more strongly than can any set of formulaic tests that few individuals … are likely to have understood the monument as amounting … to a government effort to favor a particular religious sect, … to ‘compel’ any ‘religious practic[e],’ or to ‘work deterrence’ of any ‘religious belief’” (alterations in original)).

Note the emphasis on Justice Breyer's concurring opinion in Van Orden, which was the case about the 10 Commandments monument next to the Texas state house. This emphasis is justified, as Breyer was the deciding vote in that case and another 10 Commandments case that came out the same day and went the other way. Following Breyer, you end up with multifactored, contextualized judgment.

The dissenting judge in the 9th Circuit was Harry Pregerson. He didn't go for the Breyer-style multifactored analysis but asked whether a reasonable observer would perceive "a message of religious endorsement."

Lawprof Eugene Volokh — at the first link, above — approves of the outcome. He says "the Supreme Court’s Establishment Clause jurisprudence" is "not quite right" because: 1. It's too "tricky" to look into "government’s supposed motive" ("[M]ost things that people do — and even more so most things that multi-member government agencies do — have many different motives, whether policy motives or political motives"). 2. The lack of complaints "might simply reflect that complaints about such things are often highly unpopular in many circles, and that many people can be quite upset and yet still not want to fight a thankless and uphill legal battle." 3. It's "unrealistic" to take account of "divisiveness." And what about history? Volokh says: "[T]he Big Mountain Jesus isn’t quite the Bamiyan Buddhas, but 60-year-old items are still pretty historical by American standards," and even though Big Mountain Jesus wasn't really treated like your usual historical monument: "[T]his sort of historical monument ought not be ordered off government land."

The litigation goes all the way back to 2011. Here's my original post on the subject from then. I said:

... I think removing the statue is not necessary to comply with the Establishment Clause. I go back to what Justice Breyer wrote in one of the 10 Commandments cases that the Supreme Court decided in 2005 [Van Orden]. Breyer... was the only member of the Court in the majority in both cases.

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

Big Mountain Jesus is a 50-year-old part of the landscape, so it's probably a good idea to take Justice Breyer's advice seriously and ski clear of divisiveness and a brooding and pervasive devotion to the secular.

Does the word "inoculate" relate to words about the eye like "ocular"?

That's your language test for today. Did you get it right? The answer is yes! "Inoculate" is built on the root "oculus," meaning "eye." Understanding this will help you remember to spell the word right and not succumb to the urge to double the "n."

Do you see why "inoculate" has to do with the oculus? Think of the eye of a potato. The oldest meaning of "inoculate" is horticultural, the (unlinkable) OED tells us:

To set or insert (an ‘eye’, bud, or scion) in a plant for propagation; to subject (a plant) to the operation of budding; to propagate by inoculation; to bud (one plant) into, on, or upon (another).

Then we get the figurative use, the oldest example of which comes in Shakespeare's "Hamlet" (1604):

Vertue cannot so enoculat [1623 innocculate] our old stock, but we shall relish of it.

The use of "inoculate" in the context of fending off disease arrives in 1722, in the London Gazette: "The Experiment of inoculating the Small-Pox upon..Criminals."

Speaking of eyes and having — in the first post today — spoken of the 10 Commandments, I wanted to show you a photo I took last December, a closeup of the monument on the grounds of the Texas State House (the one the U.S. Supreme Court left standing):



What's up with the eye?



All the Supreme Court said about that eye was: "An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments."

Here's the Wikipedia article on "The Eye of Providence (or the all-seeing eye of God)...."

WaPo columnist says it's "trivial to compare" Roy Moore's trying to stop gay marriage in Alabama to George Wallace's blocking the door to racial integration at the University of Alabama.

But which way is it trivial? I couldn't believe the columnist Philip Bump could possibly say that what Moore is doing is a much bigger deal than what Wallace did, to the point where anyone just saying they are at the same level was being trivial, and Bump's convoluted verbosity makes it especially hard to see what one finds hard to believe. But I slogged through it, and I survived to report that Bump actually thinks Moore's resistance to the federal court requirement that Alabama immediately issue marriage licenses to same-sex couples is a far bigger deal that Wallace's resistance to integration.

Bump's hard-to-understand argument has to do with Obama's reelection in 2012 and the Republican victories in 2014.

Moore's move is very much in the "states' rights" vein of the 1960s, a 10th Amendment argument that's seen a renaissance in the era of a president who is deeply unpopular with Republicans. But it's hard to point to Moore's action as being simply Wallace redux when you consider the national picture. Boehner and McConnell are necessarily arguing for the primacy of local priorities, representing states and districts, not the whole country. In those places, Obama is so unpopular among their constituents that 66 percent of Republicans opposed working with Obama in the wake of last year's election; the response to his actions was similarly predictable. For the next two years, we have a Congress that was elected by Americans to be Republican and a president that was elected to be Democratic. Moore's battle is with the Supreme Court, hardly an arm of the Obama administration, but the political fervor he's likely to leverage echoes the strains in national politics.

Sorry to call attention to something so badly slapped together and so blatantly partisan in the bemoaning of partisanship, but I think the utter badness of the column deserves some attention.

I was surprised to see that Roy Moore was back on the Alabama Supreme Court. He got kicked out back in '03 over that 10 Commandments business. I hadn't noticed — or I'd forgotten — that he got elected to the position again in 2012. If it weren't for the reappearance of Moore, I would have passed by this topic — the same-sex topic of the week. There are so many of these states, falling one by one, to the seemingly inevitable consequences of earlier constitutional law decisions. I see the headlines, but, even though I've been blogging profusely about same-sex marriage since early 2004, I don't feel the call to blog every new state that finds itself subject to a judicial ruling. But Moore kicked up some resistance, and he's getting attention in the style that made him famous back in the simpler times, when passions swirled rather innocuously around 10 Commandments monuments, which no one gets heated up about anymore.

And I know this will bother some of you, but I think it's pretty obvious that in 10 years, we'll look back on the swirl of passion over same-sex marriage as something even more of the past than getting heated up over 10 Commandments monuments. People will be living their private lives, as they always have, and some of the people will be gay, as they always have been, and life will go on.

Meanwhile, "Clarence Thomas faults Supreme Court for refusing to block gay marriage in Alabama."

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote in a dissent from the court’s order refusing to stay the weddings. “This is not the proper way to discharge our . . . responsibilities.”

He was joined by one other justice, Antonin Scalia, in saying the court should agree to postpone the weddings until the justices hear the same-sex-marriage case in April and rule by the end of their term in June.

Do we need any more "signal[s] of the Court’s intended resolution of that question"?

"Members of the Satanic Temple have unveiled their design for a 7-foot-tall statue of the devil they want to locate at the Capitol building in Oklahoma..."

"... right next to a monument of the Ten Commandments that has stood since 2012."


Here's the Supreme Court case that thwarts a claim that the Constitution requires that Oklahoma accept the monument, so don't hyperventilate. The question is whether Oklahoma should choose to add this work of art to its monument collection. Or, really, to me, the truly compelling question is whether this group deliberately designed an atrocious monument for the purpose of challenging and aggravating the people of Oklahoma. I assume they did, based on the daft expression on the young boy's face.

"Is there a section at the bottom for comments?"

A New Yorker cartoon, pointed out by a reader, who's observed the end of commenting on this blog.

The 100 Best Lists of All Time.

#1 is the periodic table of the elements and #2 is the Bill of Rights. I'll leave it to you to guess what #3 must be, with the additional clue that #4 is the 10 Commandments.

"The locksmith told him that locks are on doors only to keep honest people honest."

"One percent of people will always be honest and never steal. Another 1% will always be dishonest and always try to pick your lock and steal your television; locks won't do much to protect you from the hardened thieves, who can get into your house if they really want to. The purpose of locks, the locksmith said, is to protect you from the 98% of mostly honest people who might be tempted to try your door if it had no lock."

We're only relatively honest. So don't tempt us!

Lots of great material at the link, various studies and so forth. Also this joke:

There's a joke about a man who loses his bike outside his synagogue and goes to his rabbi for advice. "Next week come to services, sit in the front row," the rabbi tells the man, "and when we recite the Ten Commandments, turn around and look at the people behind you. When we get to 'Thou shalt not steal,' see who can't look you in the eyes. That's your guy." After the next service, the rabbi is curious to learn whether his advice panned out. "So, did it work?" he asks the man. "Like a charm," the man answers. "The moment we got to 'Thou shalt not commit adultery,' I remembered where I left my bike."

"We wish the people of Wisconsin would take care of their own business and leave us, and [Big Mountain Jesus], totally alone."

A 50-year-old statue in Montana, put up by the local Knights of Columbus to honor soldiers who had seen statues like this while serving in Italy in World War II, is attacked as unconstitutional by the Freedom From Religion Foundation of Madison, Wisconsin.

The monument is also a local landmark:

“People say, ‘Meet at Jesus at 11.’ Skiers take pictures with him, wrap him up in clothing and put Mardi Gras beads on him.”

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation says: “It’s terribly important that the religious right not be allowed to manipulate this situation.” (But her organization picked the fight!)

Here's the  “Save Big Mountain Jesus Statue” Facebook page, which links to this article that pre-dates the current controversy:

“I was out on the mountain, kind of exploring,” [Dan Graves] recalled, taking a break from work last week to recount his first encounter with the statue. “Of course, through the fog and the haze, I saw Christ, with his outstretched hands.”

“It was a little surreal,” Graves added.

Anyone who skis or hikes or bikes along Big Mountain’s slopes has likely had a similarly jarring encounter: coming around a bend near the top of Chair 2 to find the life-like concrete rendering of Jesus Christ, gazing out over Whitefish Lake and the Flathead Valley beyond, from a perch above where the trail splits into Ed’s Run, Hibernation and Hellroaring.

So the placement in the landscape heightens the spirituality of the encounter with the religious symbol, but I think removing the statue is not necessary to comply with the Establishment Clause. I go back to what Justice Breyer wrote in one of the 10 Commandments cases that the Supreme Court decided in 2005. Breyer — it's important to note — was the only member of the Court in the majority in both cases.

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

Big Mountain Jesus is a 50-year-old part of the landscape, so it's probably a good idea to take Justice Breyer's advice seriously and ski clear of divisiveness and a brooding and pervasive devotion to the secular. 

They say that 20-foot cross that the ACLU objects to was a gift from Woody Allen.

What a funny world we live in!

The ACLU of New Jersey threatened legal action against the Neptune school district after an attendee at last year’s graduation ceremony took offense to the building’s religious symbols and Christian-based references -- among them a 20-foot white cross above the auditorium’s entrance. The ACLU asked the school to remove or cover up the cross and three other religious signs, arguing their visibility during a public school event is a First Amendment violation....

The Camp Association said it could not cover the cross, said to have been a gift from movie director Woody Allen, who used the auditorium during shooting for the 1980 film "Stardust Memories."

Interestingly, if this case goes to court, the key Supreme Court precedent will be Van Orden v. Perry, the case about the 10 Commandments monument on the Texas State Capitol grounds, and that monument supposedly originated as a promotion for the Cecil B. de Mille movie "The Ten Commandments." From the oral argument in Van Orden:

Justice O'Connor: How did this monument get there? Was it in... is it true that it was put in as a result of promoting a movie about the Ten Commandments?

Mr. Chemerinsky: The record is unclear as to that. There are certainly many indications in the popular press that Cecil B. DeMille together with his movie, The Ten Commandments, worked with the Friends of Eagles to have these monuments put around the country. But there is nothing in the legislative history that links this particular monument to that.

And the cross is only said to be a gift from Woody Allen.

Where do all the religious stories come from? If there were movies back in Biblical times, what movie directors would be wandering around in those old Judeo-Christian stories? Anyway, I tried to find a YouTube clip showing the cross in "Stardust Memories," but I can't remember that movie well enough to know what scene it's in. I did run across this clip from Woody's "New York Stories" that has a little Larry David performance in it. And here's Larry David saying "Religion should be made fun of, it's quite ridiculous, isn't it?... If I really believed that stuff, I'd keep it to myself, lest somebody think I was out of my mind":

Tea Party people.

The shirt says "And in hell he lift up his eyes, being in torment. Luke 16:23. (Don't let it be you.)" I had trouble reading the numbers on the Biblical cite and at first saw that 16 as 18. I looked it up:

And a ruler asked him, “Good Teacher, what must I do to inherit eternal life?” And Jesus said to him, “Why do you call me good? No one is good except God alone. You know the commandments: ‘Do not commit adultery, Do not murder, Do not steal, Do not bear false witness, Honor your father and mother.’” And he said, “All these I have kept from my youth.” When Jesus heard this, he said to him, “One thing you still lack. Sell all that you have and distribute to the poor, and you will have treasure in heaven; and come, follow me.” But when he heard these things, he became very sad, for he was extremely rich.

I thought, wow, that is not the right Biblical citation for the Tea Party!

In Austin, at the Texas state capitol...

... Meade pays homage to the man he once horrified Texans to call his favorite Texan...



... and I pay a third visit — here are my first and second visits — to my favorite object from a Supreme Court opinion....



Don't you want an American flag on your 10 Commandments?

Pleasant Grove City v. Summum — a 10 Commandments monument in a city park does not require the city to put up some other religion's monument.

The decision is unanimous, and quite correct:

“We think it is fair to say that throughout our nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity,” and properly so, Justice Samuel A. Alito Jr. wrote for the court....

The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable....

The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park, Justice Alito wrote.

“The Free Speech Clause restricts government regulation of private speech... It does not regulate government speech.”

Here's the whole text of the case, which I'm eager to read, but I have a class in a few minutes, so what I have to add will have to come later. There are 4 concurring opinions, which is interesting: Stevens, Scalia, Souter, and Breyer.

ADDED: From my post-oral argument discussion of the case:

I think it's pretty obvious that the city will win as the Justices (like Scalia) who support free speech for the government will have the support of the Justices (like Breyer) who look at real-world consequences and think practical thoughts.

But there still should be some hand-wringing over the one hypothetical that really did freak out everyone -- well, not Scalia, but almost everyone: What if the United States had decided to express itself by excluding the names of gay soldiers from the Vietnam memorial? Justice Stevens posed the hypothetical, and the Justices struggle with it....

So will the city win with a clearly stated rule, will the city win with a "legal judgment" based on the whole context, or will the city win based on a clearly stated rule that has an escape clause comprising Justice Stevens's Vietnam memorial hypothetical?

It's this aspect of the case that makes me want to comb through the various opinions. But first, it's time to go to class and talk about McCulloch v. Maryland one more time (something I will never get tired of doing).

Religious monuments, government speech, Justice Breyer's "freak out" test, and Justice Stevens's Vietnam memorial hypothetical.

Dahlia Lithwick covers the oral argument in Pleasant Grove City v. Summum, the case about whether a city that has put up a donated 10 Commandments monument in a public park is stuck having to put up some other donated monument. (Here's the PDF of the transcript.) It shouldn't matter that the other monument represents a weird religion, should it? "Weird" is Lithwick's word:

With its pyramids, and mummification, and nectars, and hairless blue aliens, Summum is an existential stew of transcendental Gnosticism and particle physics: Isaac Luria meets Star Trek Voyager.

Lithwick quickly quips that it's always the other person's religion that seems weird, while your own religion seems "rational." But the reason the 10 Commandments seem more acceptable than the Summum "Seven Aphorisms" is not so much that we are not members of Summum -- maybe a few of you are -- it's that the 10 Commandments are a component of a long tradition that is elaborately integrated into the history of the United States.

That is the reason -- or part of the reason -- why the Supreme Court found -- in Van Orden v. Perry -- that it didn't violate the Establishment Clause for the state of Texas to have a 10 Commandments monument on its state capitol grounds. By the way, the 10 Commandments monument in Pleasant Grove is basically identical to the monument in Van Orden. The context is a little different though, in that the Van Orden monument has been where it was for more than 40 years, and the Pleasant Grove 10 Commandments only dates back to 1971. Also, the city of Pleasant Grove was founded by Mormons, and the 10 Commandments monument isn't the Mormon version of the 10 Commandments, so it doesn't reflect the history of the city in quite the same way.

Back to Lithwick:

In 2003, Summum's founder, Summum "Corky" Ra, requested permission to donate a monument to the park celebrating the Seven Aphorisms upon which their beliefs are based. (The Seven Aphorisms are, in brief: the principles of psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender.) Summum holds that these aphorisms were revealed to Moses at Mount Sinai, but he demurred because his people were not yet ready for them. The Decalogue was the rewrite.

Not surprisingly, the city doesn't want this monument in its park. But if they accepted the 10 Commandments monument from the donor (the Fraternal Order of Eagles), does it violate freedom of speech to reject the message Summum wants to express? Is it unconstitutional viewpoint discrimination to favor the Judeo-Christian speech -- in monument form -- over the similarly stone-carved Summum speech?

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.

Chief Justice John Roberts puts it to him this way: "You're really just picking your poison. The more you say that the monument is 'government speech' to get out of the Free Speech Clause, the more you're walking into a trap under the Establishment Clause. … What is the government doing supporting the Ten Commandments?"

Sekulow replies that the display is 100 percent Establishment Clause kosher in light of [Van Orden and its companion case McCreary]. Justice Stephen Breyer was the deciding vote in each of those cases, which—read together—stand for the current Third Aphorism of Religion Cases: Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer.

Is that really the law, you may ask, or is that some kind of joke? Here's the post I wrote about the cases at the time. Breyer's opinion was the deciding vote, and he eschewed any clear rule, opting instead for what he called called "legal judgment," "tak[ing] account of context and consequences measured in light of" the purposes of the religion clauses -- promoting tolerance and freedom.

Lithwick's line -- "Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer" -- is a joke with some truth to it -- and also some serious inaccuracy. It assumes a conclusion that is in issue: that the monument is a "government establishment of religion." And Breyer seems like too cool a character to be "freaked out" by anything. Plus, he votes against government religious expression much more than we'd see on anything like a "freak out" standard. (See McCreary.) It would make more sense to say Breyer permits government religious speech when the idea of courts stopping it freaks him out.

Lithwick notes that Breyer signaled his dissatisfaction with the doctrinal rules -- the "artificial kinds of conceptual framework." Breyer sent very similar signals at oral argument in Van Orden, which I noted at the time.

But it looks as though there is room for a clear rule here:

Justice Samuel Alito observes that there is a difference between free speech, in the classic sense of protests, leafleting, and speech-making, and hauling around massive granite monuments, then demanding public-forum analysis be applied to "the Washington Monument or the Jefferson Memorial." Joseffer says that when the government is "acting as curator," it can engage in viewpoint discrimination. In other words, it can choose the speech. "You can't run a museum if you have to accept everything, right?" says Scalia.

When government takes on the role of curator, it is no longer a question of the free speech of the original speaker. The government that chooses or rejects objects for presentation in one of its own displays is exercising its own speech, and it doesn't violate anyone else's free speech rights. It might violate the Establishment Clause, but that is another question.

Pamela Harris has 30 minutes to represent Summum, and Roberts hits her with the hypos: "You have a Statue of Liberty; do we have to have a statue of despotism? Do we have to put any president who wants to be on Mount Rushmore?"....

Even the most doctrine-loving justices seem to be bothered by the practical problem of city parks becoming cluttered with hate monuments, weird stuff, and, eventually, rusted-out cars.

I think it's pretty obvious that the city will win as the Justices (like Scalia) who support free speech for the government will have the support of the Justices (like Breyer) who look at real-world consequences and think practical thoughts.

But there still should be some hand-wringing over the one hypothetical that really did freak out everyone -- well, not Scalia, but almost everyone: What if the United States had decided to express itself by excluding the names of gay soldiers from the Vietnam memorial? Justice Stevens posed the hypothetical, and the Justices struggle with it. From the transcript:

JUSTICE BREYER: That seems to be the problem here. And what I have in this is the -- the problem I have is that we seem to be applying these subcategories in a very absolute way. Why can't we call this what it is -- it's a mixture of private speech with Government decisionmaking -- and ask the question, as we do in election cases, is the restriction proportionate to a legitimate objective? I know how you're going to answer that question. You're going to say: Of course, it is. But what's interesting me is, are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter? The answer to Justice Stevens's hypothetically is: Of course the Government can't do that because it's disproportionate.

JUSTICE STEVENS: I didn't get the answer. Did you --

MR. JOSEFFER [representing the United States, as amicus curiae]: Yes, the Government can choose to memorialize who it wants on the mall. When the Government is -- now, to be clear, that's under the Free Speech Clause.

JUSTICE BREYER: So what is the answer to the -- what is the answer to Justice Stevens's hypothetical? What is the answer to the homosexual hypothetical? What is the answer?

Breyer seems to be verging on freak-out mode there.

MR. JOSEFFER: The only question --

JUSTICE BREYER: Because that tests the theory.

MR. JOSEFFER: Well, as a matter of the Free Speech Clause, there are no limits on the Government's ability to speak freely. Under the Equal Protection Clause, the Establishment Clause, perhaps the Due Process Clause, there might be thought to be independent checks on the Government's speech. But the Free Speech Clause, whatever else it does, does not prevent the Government from speaking freely.

JUSTICE SCALIA: It seems to me the Government could disfavor homosexuality just as it could disfavor abortion, just as it can disfavor a number of other things that in -- in many States people are free to do. The Government can disfavor all of it, can't it?

MR. JOSEFFER: The Government would be powerless to do anything if it cannot first formulate and then express its own viewpoints....

JUSTICE KENNEDY: Does the law always require us to adopt an all-or-nothing position? Aren't there some extreme cases indicated by the hypothetical where the First Amendment does enter in? Do we have to decide this case that it's all or nothing?

So will the city win with a clearly stated rule, will the city win with a "legal judgment" based on the whole context, or will the city win based on a clearly stated rule that has an escape clause comprising Justice Stevens's Vietnam memorial hypothetical?

ADDED: Lawprof Chris Lund reads the transcript:

... Summum argues that the display was the Eagles' message in 1971, and it's the Eagles' message now. But that claim is really hard to square with the fact that the display has been owned and controlled by the government and has been sitting in a government park for 36 years. The Eagles haven't really been involved since 1971 -- so how is this their speech? So Summum's counsel says that the crucial thing is this -- it can't be the government's speech until the City officially adopts it by some sort of resolution....

JUSTICE SOUTER: So this case -- your claim would disappear if this town in Utah had passed an ordinance saying we adopt the Ten Commandments Monument?

MS. HARRIS: It would, Justice Souter. We would no longer have an equal access right going forward --

JUSTICE SOUTER: But that's -- I mean, if that's all that's involved here, we're engaging in kind of a -- almost a silly exercise in formality.

Now Summum's counsel tries to say it's not a mere formality. She suggests that much of the Mormon population might object to the display because it's not the Mormon version of the Ten Commandments.... But besides being arguably a formality, it's difficult to see where the "official resolution" requirement would be coming from in terms of precedent or principle....

Lund thinks Summum may lose 9-0.

If the city puts up a donated 10 Commandments monument, must it put up every other donated monument lest it violate Free Speech?

SCOTUSblog previews tomorrow's oral argument in Pleasant Grove City, et al., v. Summum.

Will the Justices’ vision be fogged by a cloud of potential horribles? The Solicitor General’s brief well illustrates this argument: “Under the decision below, a city’s display of a privately donated monument to Abraham Lincoln could entitle an individual to insist that the city permit the erection of a monument to Jefferson Davis, or a group could insist that the presence of the memorial in [Pleasant Grove’s] Pioneer Park commemorating the September 11 attacks entitles it to erect a memorial to the terrorists who carried them out.”

McCain continues his ad theme, making fun of the worship of Barack Obama.

McCain takes the risky approach of mocking our love for the other man:



Sorry, John, I found myself smiling through all those images — and it was always pretty easy to pick up the humor and the missing context of all the various things Obama was saying.

And as for that "10 Commandments" punchline... Althouse did it first. I feel like you owe me a link.

But the important question is: Will ads like this and "the biggest celebrity" one work? As I said on the radio show yesterday — listen to the first few minutes — it's risky to show ads like this, but I think they work because of the way that they acknowledge that a lot of us love and enjoy Barack Obama, but urge us to separate that love from the serious question whether he is ready to be President. That is how the ads work for me. Now, I do think the ads works differently for different people.

Those who already don't like Obama can have a laugh. Aren't the people who worship the man ridiculous? This is the way Rush Limbaugh took it:

I'll tell you, if the Obama people got mad and fed up over the Britney Spears celebutard ad, this is going to frost 'em. This is fabulous. This is Barack Obama's words right back at him. This is what Obama has said. And it's fun! It's having fun, yes, but it's his own words thrown right back at him.

Obama devotees can also enjoy a laugh: Our candidate is so fantastic that the only thing McCain can come up with is that he's just too fantastic. We can't promote him with lavish worship — isn't it hilarious that McCain is doing the worship mode for us?

But the key is how the ads affect independent, undecided voters. (Like me!) And I think they may be succeeding in encouraging us to separate our thinking about Obama into 2 parts:

1. He's really cool and great and this whole campaign is a lot of fun.

2. Being President is a deadly serious and immensely difficult and important business and we've got to pick the man who is better prepared to take it on.