The Rev. Fred Phelps is a walking migraine for Casper, Wyo. When native son Matthew Shepard was beaten to death five years ago by homophobes, Phelps picketed his funeral, screaming, "God hates fags!" as Shepard's grieving parents entered the church. Now the Kansas reverend wants to put up a 6-foot-tall monument in Casper's Central Park that you can view here (warning: this site contains both incendiary and very graphic matter). A bronze plaque on the monument would read:
Matthew Shepard Entered Hell October 12, 1998, at age 21 in Defiance of God's Warning: "Thou shalt not lie with mankind as with womankind; it is abomination." Leviticus 18:22
Cities are hardly obligated to let private groups build monuments in public parks, so ordinarily it would be easy to get rid of Phelps. But since 1965, Casper Central Park has been home to a granite replica of the Ten Commandments donated by the local Fraternal Order of Eagles. That poses a problem for Casper, because if a city wants to open up its property to the messages of private religious groups, it had better be prepared to welcome all of them, however unfortunate. It doesn't solve the problem, as Casper is now attempting to argue, for a city to try to collect and display the monuments it considers historically significant, put them up together, then reject the rest. Picking and choosing between monuments because of their subject matter is just as risky, when it comes to claims of government discrimination, as choosing among them based on their point of view.
That was the conclusion reached last year by the 10th Circuit Court of Appeals (the federal appellate court with jurisdiction in Wyoming and five other Western states). The FOE has donated replicas of the Ten Commandments around the country. In a challenge involving one set of tablets, the court suggested that a city couldn't give play to the Ten Commandments and not to other religious messages. That case resulted in the following bizarre result: The city of Ogden, Utah, had to let a church called Summum erect a monument inscribed with its seven foundational principles (including "the Principle of Psychokinesis, the Principle of Vibration") because Ogden's Central Park also had a replica of the Ten Commandments, also courtesy of the Eagles. Since the city had given its park over to the messages of private groups, the court said, all groups had to get equal access—otherwise, Summum could argue it was being discriminated against for its point of view, a big no-no under the Free Speech Clause of the First Amendment.
The 10th Circuit rejected Ogden's argument that it could keep the Ten Commandments while keeping out Summum because the tablets had greater "historic relevance" to the city. The court didn't say that no city could ever accept one monument over another based on historic relevance. But because Ogden had no written policy or established practice of choosing monuments based on their history, the court said, the city's sudden, after-the-fact move to exclude Summum looked fishy.
Yet the 10th Circuit's ruling hasn't stopped Casper from trying to buffer its own Ten Commandments in arguments about history, too. Faced with Phelps' monument—Casper's city manager said people there are "repulsed" by the whole thing—the city council voted on Oct. 27 to move the twin tablets to a new public plaza, to a space specifically designed to highlight important moments in legal history. Now the Ten Commandments will be surrounded by other monuments the Casper city officials consider important to American law, including the Declaration of Independence and the preamble of the Constitution.
All this maneuvering might be a nice try for getting rid of Rev. Phelps. But it doesn't ultimately get Casper off the hook—or at least, it shouldn't. Moving the Ten Commandments to History Plaza, or Pick-Your-Topic Quadrangle, simply masks the problem posed by religious monuments on permanent display in public spaces. When a city chooses to let one group promote a religious message because of its "historic importance," it's not really being neutral. It's promoting one faith over others. How different is erecting the Ten Commandments on History Plaza from erecting them in the rotunda of Roy Moore's Alabama courthouse? The city can go on about how its plaza is all about the great tradition of American legal history, but like Ogden, Casper is just scrambling after the fact to preserve the religious message it likes and scrap the one it doesn't. For constitutional purposes, discrimination based on subject matter is as problematic as discrimination based on point of view. The First Amendment doesn't allow the government to fight hate speech by building a new public square in which all speech save for hate speech is welcome.
If you're tempted to shrug off these constitutional concerns as technicalities, out of eagerness to foil Phelps' plan, don't be. A long line of First Amendment cases holds that it's constitutional for the government to set "time, place and manner" limits on what groups put up in public spaces (by setting rules about the proposed monument's size or building materials, say). But when the test for who gets to speak is based on historical relevance, or any other subject matter, the preferences of city officials inevitably creep in. In Casper, the Ten Commandments have been deemed vital to American law, but the Quran and the principles of Summum probably won't be. That's exactly what the First Amendment's Establishment Clause—the provision holding that government "shall make no law respecting an establishment of religion"—is designed to prevent.
Casper can try to disassociate itself from the Ten Commandments on the grounds that the twin tablets were paid for and put up by the Eagles, not the city. The 10th Circuit muddied things on this front last year by saying that the Ten Commandments in Ogden's park represented the Eagles' speech, and not the city's. But Casper's decision to display the Ten Commandments amid the big symbols of U.S. history only underscores the impression that the city has taken the Eagles' message for its own. Casper could put up a big disclaimer sign on the Decalogue alone, but who would that fool?
And if the new History Plaza signifies that Casper is talking about religion, then what it's saying is something like "Go, Judeo-Christianity!" A private museum designing an exhibit could make the case that the Ten Commandments is a foundational legal document, even foundational to American law. But it means something different when a city makes such judgments. In short, History Plaza is no different from Casper Central Park, in that neither public space can be opened up to some religious endorsements but not others. And pretending that History Plaza is about history, rather than religion, does nothing to solve the constitutional problem.
The Establishment Clause is about preventing cities from going into the religion-picking business. There are, to be sure, Supreme Court decisions that lean the other way. The U.S. Supreme Court said in the 1984 case of Lynch v. Donnelly that the city of Pawtucket, R.I., could have a crèche in its annual Christmas display, unconvincingly explaining away the symbol's religious significance. And last year the court allowed school voucher programs that pay for students to attend parochial schools. But the crèche was permitted because it was deemed a secular holiday symbol. And the programs were deemed constitutional specifically because they treated Pentecostal and Muslim and Jewish and Catholic schools alike. The same can't be said for a city's choice of permanent monuments. If the 10th Circuit was right, and Casper has to make room for every zealot minister, the city's plaza will become wall to wall monuments. That simply cannot be right.
The Establishment Clause is for anyone who goes to the park just to sit on a bench and smell the flowers. If it protects Casper from Phelps and his bile, it means the Ten Commandments have to go, too.