Edmonton Journal - - CLASSIFIED | OBITS - Noah Feld­maN

Pity the poor res­i­dents of Belle Plaine, Minn. They’re about to get a veterans me­mo­rial with satanic sym­bols in their pub­lic park — and it’s their own fault. They al­lowed a Chris­tian me­mo­rial ear­lier this year, open­ing the park to all memo­ri­als in or­der to avoid vi­o­lat­ing the con­sti­tu­tional pro­hi­bi­tion against es­tab­lish­ment of re­li­gion. Now they have to al­low the satanic me­mo­rial as a mat­ter of free speech. Whip­sawed be­tween two dif­fer­ent clauses of the First Amend­ment, they prob­a­bly don’t know what hit them.

To un­der­stand what’s hap­pen­ing in Belle Plaine — and why it makes le­gal sense, if no other kind — you need to start with the com­plex, judge-made rules about what hap­pens when re­li­gion and free speech in­ter­act.

Some­time last year, the Belle Plaine Veterans Club paid for and in­stalled a new mon­u­ment for Veterans Me­mo­rial Park in the town about 70 kilo­me­tres south­west of Min­neapo­lis. Close to a gran­ite me­mo­rial in­scribed with the names of the town’s war dead, the new me­mo­rial de­picted in sil­hou­ette a sol­dier kneel­ing with a ri­fle in front of a cross that is roughly the size of a tomb­stone in a mil­i­tary ceme­tery.

The Free­dom From Re­li­gion Foun­da­tion ob­jected, ar­gu­ing that the new me­mo­rial was an en­dorse­ment of Chris­tian­ity in vi­o­la­tion of the es­tab­lish­ment clause of the First Amend­ment.

In my view, it wasn’t at all cer­tain that the me­mo­rial was un­con­sti­tu­tional. Yes, it in­cludes a re­li­gious sym­bol, and it’s cer­tainly pos­si­ble that a court would have found that in con­text, it amounted to a pref­er­ence for re­li­gion over non-re­li­gion.

But it also would have been pos­si­ble for a court to in­ter­pret the me­mo­rial as de­pict­ing a sol­dier kneel­ing be­fore a grave that was marked by a cross, not be­fore the cross in a re­li­gious sense. Any­one who’s been to mil­i­tary ceme­ter­ies like those in France or Italy knows how mov­ing the fields of crosses can be.

Such a me­mo­rial might not reg­is­ter as an en­dorse­ment of re­li­gion, and would be con­sti­tu­tion­ally per­mit­ted. But Belle Plaine, which had a pop­u­la­tion of just 6,661 in the past cen­sus, didn’t want to go through costly lit­i­ga­tion. So it re­moved the me­mo­rial.

That led to pub­lic ob­jec­tion, which per­suaded the town to al­low the me­mo­rial. That in turn led to a cre­ative but high-risk le­gal so­lu­tion.

Ac­cord­ing to U.S. Supreme Court doc­trine, the es­tab­lish­ment clause ap­plies only when the gov­ern­ment it­self is act­ing.

But if pri­vate speak­ers, not the gov­ern­ment, are talk­ing, then there’s no prob­lem with gov­ern­ment en­dorse­ment of re­li­gion, be­cause (in the­ory) no rea­son­able ob­server would think the gov­ern­ment was ex­press­ing a view.

So Belle Plaine de­clared that it was cre­at­ing a zone in the park in which any pri­vate ac­tor could place a me­mo­rial. That’s known in free-speech law as a “limited pub­lic fo­rum.”

In such a fo­rum, the gov­ern­ment opens its prop­erty to pub­lic speech. It can limit the sub­ject mat­ter, but it can’t limit the speak­ers’ view­points.

Thus, Belle Plaine could legally say that the des­ig­nated area was be­ing opened to veterans memo­ri­als. But it couldn’t say that only Chris­tian or re­li­gious or sec­u­lar memo­ri­als could be placed there. Un­der a landmark 1994 Supreme Court de­ci­sion, Rosen­berger v. Rec­tor and Vis­i­tors of the Univer­sity of Vir­ginia, re­li­gion counts as a view­point in a limited pub­lic fo­rum.

The town’s pur­pose in cre­at­ing the fo­rum was, of course, to al­low the sil­hou­ette me­mo­rial. But that per­mis­sion came at a cost: The town would have to al­low any veterans me­mo­rial, re­gard­less of its view­point, in the same area.

The Satanic Tem­ple of Salem, Mass., re­sponded. Its pro­posed me­mo­rial is a square block of stone with satanic sym­bols like the pen­ta­gram carved on the sides and an up­side-down mil­i­tary hel­met. The tem­ple claims that “this will be the first Satanic mon­u­ment erected by Satanists on pub­lic prop­erty.”

The town can’t do any­thing to stop it — not any­more. Satanism is a re­li­gious view­point. It would vi­o­late Satanists’ free-speech rights to deny them ac­cess to the limited pub­lic fo­rum. Most likely, the town couldn’t even re­quire me­mo­rial spon­sors to be town res­i­dents, be­cause the fo­rum is open for veterans-me­mo­rial speech gen­er­ally.

Whether you think the re­sult is ab­surd is a good test of whether you like this com­pro­mise carved out by the courts.

One old-fash­ioned sec­u­lar­ist view would be that no one should be able to erect a re­li­gious mon­u­ment, whether Chris­tian or sec­u­lar­ist, in the park. Ac­cord­ing to this logic, the fic­tion of mak­ing the park into a limited fo­rum for pub­lic speech should be treated as ab­surd. This is gov­ern­ment space.

An al­ter­na­tive old-fash­ioned cri­tique, this one from the other side, would say that there’s noth­ing wrong with the town choos­ing a me­mo­rial that re­flects its res­i­dents’ re­li­gious val­ues. En­dorse­ment of re­li­gion wasn’t the con­sti­tu­tional framers’ in­tent when they adopted the es­tab­lish­ment clause. As long as no one is be­ing co­erced to wor­ship, the framers would have ob­jected only if gov­ern­ment money was used to erect a re­li­gious statue. A pri­vately funded me­mo­rial on pub­lic land wouldn’t have been con­sid­ered a vi­o­la­tion.

The cur­rent com­pro­mise tells gov­ern­ment that it has to choose be­tween con­trol of mon­u­ments, in which case it can’t en­dorse re­li­gion, or giv­ing up con­trol and al­low­ing any­one to speak.

Faced with these op­tions, most towns choose con­trol. Pleas­ant Grove, Utah, made that choice in a case that went to the Supreme Court. In 2009, the jus­tices ruled that the town could ex­clude a pro­posed re­li­gious mon­u­ment from a park be­cause the choice of stat­ues was a mat­ter of gov­ern­ment speech.

Belle Plaine prob­a­bly now wishes it had gone that route. Or maybe Satan and the cross can co­ex­ist, a strange com­bi­na­tion of bed­fel­lows ar­ranged cour­tesy of the jus­tices in Washington.


The Free­dom From Re­li­gion Foun­da­tion ob­jected to a me­mo­rial de­pict­ing a sol­dier in front of a cross, ar­gu­ing that it was an en­dorse­ment of Chris­tian­ity in vi­o­la­tion of the es­tab­lish­ment clause of the First Amend­ment, and re­sponded with its own me­mo­rial.


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