There is no aspect of this story that has to do with destroying the statue.
There is also nothing in this story which claims that erecting a statue, by itself, establishes a religion. The religion obviously needs to be in place for a statue of a guy in a blue robe with a big heart brooch to be considered a religious icon.
Erecting that statue is, without question, a religious act. The issue isn’t whether or not putting a six-foot statue on top of a mountain in Montana establishes a religion.
The fact that a government agency–which arose from a democratic government–made the decision, is not really at issue either. Part of our system includes the freedom to challenge the decisions and actions of elected officials as well as those of governmental agencies.
Those challenges are often made on the basis of constitutional issues. And, to re-quote Ms. Gaylor:
I recall that I said to kenetic, “if you can demonstrate that the framers of the Constitution believed that putting up a statue of Jesus is an establishment of religion, then I’ll acknowledge that this statue should be removed.” I’m sure that an intelligent and educated person such as yourself is well aware that Thomas Jefferson was not involved in writing the Constitution. Even if material he wrote had an influence on the Constitution, that does not mean that his personal opinion determines national law. Much less does it mean that his personal opinion determines universal law for all humanity. The second statement from me that kenetic quoted in his last post dealt with universal law. So what exactly is your complaint about that statement?
It’s worth noting as a side note that if we can’t have expressions of religion on government property, then all copies of the Virginia Statute for Religious Freedom on government property will need to be burned or otherwise disposed of. Here’s the opening:
Whereas, Almighty God hath created the mind free;
That all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and therefore are a departure from the plan of the holy author of our religion, who being Lord, …
Probably true, but what of it? Just because a certain object on government property would not have been used by Muslims or Jews doesn’t mean that it “belittles” Muslims and Jews. The pork served in government cafeterias would not be eaten by Muslims or (Orthodox) Jews, but said pork does not belittle Muslims or Jews.
The first amendment doesn’t prohibit an establishment of religion. It prohibits any law respecting an establishment of religion, a much broader swathe of potential legislation. Nobody other than some crazy right wingers have advocated anything resembling your interpretation of the Establishment Clause since about 1800.
The legal standard here is fairly simple: religious displays are okay if they have a secular purpose and are integrated into a historic and primarily secular display.
As far as I can tell, there’s nothing to the “war memorial” other than a statue of Jesus, so while it’s arguably historic, there doesn’t seem to be a valid argument that it’s “primarily secular”.
There are a couple of areas in the establishment clause that are unclear to the ear of a modern English speaker. “Make no law respecting an establishment of religion” is the part in question. What does “respecting” mean? Does it mean showing respect towards, or just “regarding”? And what does “establishment” mean - did they mean the government establishing a national religion, or were they calling a religious denomination an “establishment of religion”?
“Congress can’t do anything regarding setting up a national religion”
“Congress can’t do anything that shows respect to a religious denomination”
I think they meant the former, but it also seems clear that the government playing favorites with religions is one part of setting up a national religion, so anything that favors and one religion or set of religions is not allowed.
Allowing a Jesus statue on public land, without giving every viewpoint equal opportunity, goes against this. So it seems to me, and so it seems to recent Supreme Court rulings.
I happen to agree, but Ms. Gaylor’s interpretation of the establishment clause is not a binding pronouncement of law.
IMHO, it doesn’t matter what the framers meant. Using spotty extraneous sources to divine the intent of people who passed the Constitution and its amendments is a fool’s errand, because we never know if everyone who voted for an amendment shared somebody’s else’s understanding or intent.
What matters is what they were able to pass, and it seems pretty clear from the text of the clause that any enactment suggesting that the government is endorsing a religion is unconstitutional.
As an aside, I’d have much less of a problem with the statue if the Forest Service charged the Knights of Columbus the market rate for the land (which I presume is a fairly trivial amount anyway, being on top of a mountain).
This lawsuit and others like are based on the assumption that putting up a statue of Jesus and no other religious figure inherently favors Christianity over another religion, but if we applied that logic widely the results would be absurd. There’s a monument to a Baptist preacher near the Mall in Washington. Does that favor the Baptists over every other religious group? And if the answer is that the courts get to decide whether each and every thing on government land is “secular” enough to be permitted, doesn’t that effectively make the courts censors?
For that matter, there’s a statue of Albert Einstein on the Mall, and no statue of any other scientist as far as I know. Does this mean that the government is showing favoritism to physics over other branches of science? Should chemists and biologists file a lawsuit?
First, anyone with two brain cells knows that Martin Luther King doesn’t have a memorial because he was a Baptist preacher. His calling is incidental to his historical importance.
And no, it doesn’t make the courts “censors” in any meaningful sense. Censorship implies government regulation of private speech, which clearly isn’t what we’re discussing here. If the government starts telling churches on private land that they can’t put up statues of Jesus I’ll be right there with you to protest.
As to your second argument, reductio ad absurdum only works when a hypothetical relates to the underlying argument. Since there is no constitutional provision barring the government from favoring one branch of science over another, then the government can show favoritism to any branch of science it likes.
The last time I checked, anonymous internet posts do not have legal standing. You personally feel that a memorial to Dr. King is okay because his religious views were incidental, but how can we be sure that the courts will always feel the same way? In your terminology, what guarantee do we have that every judge will have two brain cells?
I don’t think censorship necessarily involves private speech. A few years ago when it came to light that the Bush Administration have altered and covered up reports by government scientists, many people described it as censorship.
The precise wording of the argument is unimportant, though. The point is this. I’m hearing that a statue of a religious figure on government property is acceptable if it has “a secular purpose” and if the religious aspect is “immaterial”, but otherwise it’s not acceptable. And the only apparent way to determine whether a particular statue (or anything else) meets this standard is for someone to file a lawsuit and for a judge to decide whether or not the statue in question has a secular purpose. In other words, it’s up to a judge to decide whether a certain act of expression will be legal or illegal. A judge’s opinion should not determine whether a type of expression is legal or illegal.
That misses the point. Does a statue of a physicist combined with no statue of a chemist or biologist show favoritism to physics? Most people would agree that it does not. It’s just a statue, and shows no favoritism to anyone. So likewise with a statue of Jesus Christ. It shows no favoritism to anyone. It does not belittle anyone any more than a statue of Einstein does.
None, of course. So what? Their decisions are always subject to review by a higher court, and if the lack of brain cells reaches all the way to the top of the judiciary we will assuredly have bigger problems to worry about.
Fair point. Nonetheless, judges have always been the arbiters of what speech is constitutionally protected and what isn’t.
That’s the Supreme Court’s position, not mine. It shouldn’t be up to anyone to decide whether a certain act of government religious expression should be legal; it shouldn’t be, period.
However, since some sort of forum is necessary under the present state of the law, judges are certainly the best people to make such decisions. Legislators and executives are less concerned with what’s legal and more concerned about what’s popular. That’s why we have an independent judiciary and checks and balances in the first place.
That certainly misses the point, which is that there is an obvious history of governments favoring certain religions, with attendant difficulties for members of other faiths (or none at all). There is no such history of governments favoring certain scientific fields.
Anyway, Einstein is not analogous to Jesus. Einstein is significant as a historic figure, who like King has transcended his field of work. If the government went around putting up statues of some researcher at Dow, it would certainly be a signal of favoritism.
It’s not that the Jesus statue “belittles” anyone. It’s that it makes a statement about the government’s preferences. Jesus has not transcended religion.
That brings us right back to the question of whether the framers of the Constitution had in mind giving the judiciary the power that the modern-day judiciary has granted to itself. Is there any evidence that the framers wanted religious statues on government property and other such forms of expression to be banned, and judges to decide which statues actually are religious and which aren’t? Failing that, is there any evidence that anyone in early American history thought that the First Amendment demanded that? If there is such evidence, I will grant there’s standing for the lawsuit that inspired this thread. If there is no such evidence, then I think judges have grabbed power that the Constitution wasn’t meant to give them. You’ve said “it doesn’t matter what the framers meant”; I think it does matter what the framers meant, and judges spend plenty of effort discussing what they meant in their decisions and elsewhere. But if we’re unable to agree on that, then perhaps we have an irreconciliable difference on the topic of what purpose the Constitution is supposed to serve, in which case we should just leave it at that.
Are the Federalist papers silent on such, or are there possible exemplars?
Not until the Establishment Clause was made applicable to the States, did the state courts have to worry about it, so the issue before that was not a court v. court constant battle.
That might bring you back to the question, but I already addressed it earlier on this page.
The short version is that nobody should give a shit about what a bunch of dead guys “had in mind” when they wrote things. That’s an academic exercise for literature students, not a serious policy discussion.