Charlton Heston and the Separation of Church and State

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.

Comments

[Steve]

Two-- no, three-- reactions:

(1) Every journalist who covers this case should know about the origins of the Ten Commandments monuments in Hollywood showmanship: I hope they all read this post.

(2) Yikes!

(3) I wonder what you think of Noah Feldman's recent argument-- I can't really do it justice here-- that these sorts of symbolic disputes ought to get less attention from those of us committed (as I am) to the First Amendment than they have received, so that we can concentrate on more obviously consequential matters, like what's taught in schools and what sorts of private groups get or don't get government $?

[Fred Lane]

Hi Steve --

Thanks for your comments. I would certainly be delighted if every journalist covering this case would read both my post and even better, my upcoming book . Feel free to forward it to any you know.

There's some merit to the argument that these symbolic debates get more attention than they should. Certainly, whether a granite monument sits in a city park is less important than the soldiers dying in Iraq, the millions without health care, the children not graduating from school (or graduating unprepared), and so on. But ultimately, these debates are important because they are symbolic of so much else that the Religious Right wants to accomplish with the help of a compliant federal judiciary, including in some instances restricting our very ability to debate some of these issues. So while this particular monument may not even be the most important issue on the Court's docket next year, it can be seen as the granite nose of a very large and threatening camel.