Did the SCOTUS just Turn the Constitution Into a Popularity Contest?

At OS' More Liberal Than Liberal, Justin Schmidt picks up on a SCOTUS decision that is, to say the least, disturbing. To begin with, though a complicated Constitutional question, the decision was unanimous.

The U.S. Supreme Court ruled on Wednesday that a Utah city can refuse to put a religious group's monument in a public park near a similar Ten Commandments display.

The justices unanimously sided with the city of Pleasant Grove, which had said a ruling for the religious group would mean public parks across the country would have to allow privately donated monuments that express different views from those already on display.

The Summun religious group, founded in Salt Lake City in 1975, sought in 2003 to erect a monument to the tenets of its faith, called the "Seven Aphorisms," in a park where there are other monuments, including a Ten Commandments display.

Pleasant Grove rejected the request, citing its requirement that park displays be related to its history or be donated by groups with longtime community ties, like the Fraternal Order of Eagles that gave the Ten Commandments monument in 1971.

The religious group sued and argued that it violated the constitutional right to free speech for the city to allow one message on public property while excluding another message. A U.S. appeals court agreed.

Justin is trying to figure out what this decision means.

This sets a precedent in which government will be the final arbiter of what type of permanent monuments can or can not be erected on private [I think he meant to type "public". Doesn't make sense otherwise. MA] property. I find it to be a very interesting decision. Does this separate church and state, or draw them closer together? Certainly it gives government slightly more regulatory power over symbols and monuments that might be considered a form of "free speech." But on the other hand, it promotes the principle that public consensus must be reached on such issues.

The first problem is in that last sentence. This is a Constitutional question, and Constitutional is not supposed to be determined by whether or not a local community agrees with its provisions. Nor are its strictures supposed to be eliminated in a community where the local govt claims to have "consensus".

The Constitution is there precisely to protect the minority from what DeToqueville called "the tyranny of the majority". This decision seems quite clearly to ignore that little problem in favor of evading the practical difficulties involved or, even worse, to favor of local community standards above the law. Theoretically, then, the SCOTUS just gave a city the right to determine which religions were and which were not welcome within its boundaries based on whether or not such religions can attract majority approval.

That's bad enough. Far worse is that not one current Justice saw that as a problem that outweighed states' rights and what the city's attorneys called "junk".

Attorneys for the city argued that the appeals court's ruling would require cities and states to remove long-standing monuments or result in public parks nationwide becoming cluttered junkyards of monuments.

The Supreme Court agreed.

So the Christian monument is there in a public park via the FOE. Other religions can go spit. They weren't there early enough. They don't have the "community approval". There aren't enough of them. They don't have a govt-approved community sponsor like the Rotary Club or the American Legion. IOW, "they aren't one of us" is a perfectly fine reason to keep some group from putting a symbol of their beliefs into a public park even though the dominant culture does just that in many public spaces and conservatives send up a howl of indignation that they're being persecuted if they can't jam their religious tenets into the lobby of a courthouse, which is the last public place they should be allowed.

And NOT ONE Supreme Court Justice has a problem with that? Not one?

Something's terribly wrong here.

Comments

[Aaron Rapp]

In the article I read, it indicated that this was a "Free Speech" case only; it did not rule on the Establishment Clause. I'm no lawyer, but I think what needs to happen is a challenge based on a violation of the Establishment Clause. Then we can go in this direction:

"The Rev. Barry Lynn of the group Americans United for Separation of Church and State reacted to Wednesday's ruling by saying all permanent religious symbols should be removed from government-owned parks."

[Sam B.]

I am a lawyer, and I agree with the comment above. The case had no bearing on the separation of church and state (Establishment Clause). The court held that the monument was government speech, which is not subject to the Free Speech Clause. They did not review the monument under the Establishment Clause, which is a much more nuanced and complicated analysis when it comes to monuments, nativity scenes, etc.

[feckless]

Isn't the definition of "obscene" as regards to free speech delegated to each community?

The Miller Standard:
The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Relegating constitutional rights to tyranny of "contemporary community standards" is a 30 year old precedent under US law.

Roberts and Alito know exactly how fast to turn up the temperature towards their vision of a boiling pot of republican (ie failed) legal orthodoxy.

Every ruling for the next 30 years from these clowns will inch us towards dictatorship and doom.

We need to change our constitution, limit the terms of Supreme Court Justices (for life justices waiting for the political climate to change as their health deteriorates is just stupid), give the president one 5 year term, do away with the electoral college and get special elections for vacant senate seats.

But like Rome, the ruling class is too entrenched to make the obvious changes to meet a crisis.

[mick]

To the lawyers:

Maybe. Here's the problem. While you're right technically you're almost certainly wrong in practical terms. I am assuming here (and I should have made that clearer) that this ruling will be used in Establishment Clause suits by the right-wing to prove that the Supreme Court has set a precedent in the Free Speech area that must of necessity be applied to EC cases because the core of the decision was about the right of local govts to control religious access to public spaces.

But if you want to return to arguing this under FS, they're still wrong because the argument is the same: can a group be deprived of their right of speech, whether about religion or anything else, simply because they represent viewpoints not part of the "community consensus" and not backed by a govt-approved organization? Of course not.

We both know that a religious monument should never have been allowed space in a public park to begin with but having done it for one, they are now required to allow any other religious group with the money and interest to do it, otherwise they are favoring one form of speech over another, allowing one and forbidding another when there is no justifiable, logical, or coherent reason for doing so.

The most damnable part of this decision to me is the rationale that the local govt may ignore the rights of a minority if not ignoring them would be "inconvenient". If that isn't unConstitutional, I don't know what is.

My objection stands. (Read it again; it doesn't rise or fall on the religious question.)