Posted on 08/14/2003 7:00:49 AM PDT by Valin
Thou shalt not make unto the public any graven image of the Ten Commandments? All across the country, individuals and groups have sued municipalities for the removal of monuments bearing images with religious significance. A series of landmark Supreme Court decisions in the 1980s launched this labyrinthine area of First Amendment jurisprudence by indicating that a religious symbol on public property may, under certain circumstances, convey an impermissible state endorsement of religion or preference for religion over nonreligion. Today, cities across the country must decide what to do with plaques, images, crosses, or statuary that have stood for decades, but have not survived a modern court’s interpretation of the First Amendment.
In La Crosse, Wisconsin, the Freedom From Religion Foundation successfully sued the city to have a monument bearing the Ten Commandments removed from a public park. The Fraternal Order of the Eagles had sponsored the erection of this five-foot tall, two-foot wide monument in 1965. City officials tried to redeem the constitutionality of the monument by selling a small 20 x 20 foot parcel of public land around the monument to its donors for fair market value. But two weeks ago, a federal judge in Wisconsin held that even divesting ownership of the constitutionally unclean property did not solve the problem.
The City of La Crosse considered several options: moving the monument to church property; moving the monument to the Eagles’ building’ and selling the land to the Eagles for fair market value. The Freedom From Religion Foundation also offered to buy the land for fair market value. It chose selling the land around the monument to its donors.
When the Eagles bought the parcel, they went to great lengths to ensure that no one would mistake the Ten Commandments monument as city property. First, they installed a four-foot iron fence around the perimeter of their parcel and hung 14 x 20 inch signs proclaiming the property as that of the Eagles. Then, they erected a second four-foot iron fence on city property. On that fence, they hung signs stating “Private Park” in ten-inch letters. The signs also stated, in four-inch letters: “This property is not owned or maintained by the City of La Crosse, nor does the city endorse the religious expressions thereon.”
But this was not enough for the court. It held that even these extensive measures were unconstitutional because the city’s intent was to leave the monument in place rather than remove it. The court ruled that the city had to rescind the sale and take down the Ten Commandments.
When addressing religious monuments on outdoor public land, the law should not make a distinction between moving the monument to private property and moving private property to the monument. The purpose behind the Supreme Court cases declaring certain religious displays un-Constitutional was to prevent government entities from conveying a message of endorsing religion. Displaying religious symbols on one’s property is one way of conveying such an endorsement. But here, no reasonable observer could be confused as to the ownership of the property. Once the city no longer held the property, and that property was distinguishable from city property to the casual observer, whatever ideas expressed on that property should no longer be imputed to the city.
The harder question is whether the city should be able to give the Eagles a forum for their message (through property ownership) that was not available to anyone else. Although the Eagles did purchase a place to propagate a religious message, the controlling principle should be that governments have the right to sell their property to whomever they wish. Imagine that instead of a relatively easy-to-move monument, a chapel stood in the park. Should the entire building have to be moved or demolished to satisfy the Constitution?
Where courts declare longstanding monuments un-Constitutional, municipalities need greater flexibility to deal with the problem because the most religion-neutral solution—never erecting the monument on public property in the first place – is no longer available. If the city chooses to sell the offending property, the chief concern of the court should be whether a casual observer would understand the symbol in question as representing the city’s view or that of a private speaker. Here, the fence and signage should have made that distinction sufficiently apparent.
Regardless of whether such quasi-religious monuments should be in the public square, the City of La Crosse should be lauded for its creative solution to a difficult problem posed by the arcana of Establishment Clause jurisprudence. Surely the First Amendment can allow more flexibility than this move-it-or-lose-it approach espoused by the federal court.
Susanna Dokupil is an attorney in Texas and a regular contributor to TAEmag.com.
Re-freepin'-diculous. It became part of conspicuously private property; who gives a hoot HOW? This is not even a tenuously plausible interpretation of the 1st Amendment establishment clause; this is a vendetta.
Where's my attorney?
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