Free Speech All Around

My, what a busy week for the First Amendment! First, in a dark day for the Bill of Rights, the House of Representatives passes a Constitutional Amendment that allows Congress to ban flag desecration. The substantive debate over whether the U.S. flag needs protection, of course, is more worthy of ridicule than serious argument. As my favorite magazine puts it:

In 1989, when the Supreme Court ruled that desecration of the American flag fell under the protection of the First Amendment [Johnson v. Texas], it seemed like a perfectly sensible decision...But that was before our current epidemic of flag-burning swept the nation.

This would all be fun and games, if it weren't for the fact that this time it might be for real. Unlike the last several times the House has passed such an amendment, today's U.S. Senate is a conducive place for right-wing populist wedge issues. The Republicans have a 55-44 edge in the upper house, and even opponents of this absurd proposal say that if they prevail, it will probably only be by a couple of votes. A dark day indeed.

The second and third events in this week of fun both came today: the U.S. Supreme Court did and didn't uphold the display of the Ten Commandments on the grounds of public buildings, and the same pack of judges declined to rule on the case of two journalists who have refused to reveal their sources in the Valerie Plame leak case.

Since these cases don't concern a Constitutional Amendment, a quick application of legal precedent ought to suffice. On the Ten Commandment cases, the Court issued decisions that are separated by a line so thin it takes an electron microscope to see it. The Kentucky displays, which the Court struck down, were ruled to be conscious attempts by the state to advance the cause of religion. The Texas displays, however, were determined to have a passive, secular purpose. The former were erected fairly recently by the government, which means their erection is illegal; the latter were erected a long time ago by the Fraternal Order of the Eagles, which means their erection is okay.

However, what we're forgetting is that we have a very easy test we can apply to determine whether either display is constitutional. In the 1971 case Lemon v. Kurtzman, Chief Justice Warren Burger wrote that laws involving religion are permissible only if they pass the following tests:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion.

Where does the Kentucky trip and the Texas case stand? The physical location of the Texas display, according to Justice Breyer (the only Justice to vote with the 5-4 majority in both cases), "suggests little or nothing of the sacred," and the monument's forty year history without dispute suggests it is simply part of a "broader moral and historical message reflective of a cultural heritage."

But is this difference really anything more than semantic? It doesn't seem so. The Eagles erected the Texas display in hopes that its presence would deter juvenile delinquets from carrying out their dastardly deeds. But did they really believe the monument's power came from a secular source? Without the authority of a higher power, it doesn't seem that there is much intrinsic, compelling power held by the command not to "covet thy neighbor's ox." It seems extremely dubious that the Eagles' erection, or the states' complicity, was rooted in a "secular purpose."

Furthermore, the display seems to violate Lemon's second commandment (to neither advance nor inhibit religion) even more explicitly. As Justice Stevens writes in his dissenting opinion, by paying tribute to the Ten Commandments but not, say, to the Islamic Sharia, Texas delivers the message that "this state endorses the divine code of the Judeo-Christian God."

By allowing a Ten Commandments monument to stand, the states of Kentucky and Texas violate the First Amendment. The displays are meant to advance a religious agenda; if the truth were otherwise, monuments to the English common law (much more important to the American system of jurisprudence) would be heck of a lot more common (no pun intended).

So, on the issue of the First Amendment and its wedge-applying enemies on the hard right, I close with one last thought from my favorite magazine:

...Senator Orrin Hatch understands where the true threat lies. "It's time to stand up for our symbol," he told The New York Times. "I consider defecating on the flag, urinating on the flag, burning the flag with contempt--just to mention three--to be offensive conduct, not speech." Yes, let's save that sort of behavior for the Bill of Rights.

PS: Since the Valerie Plame case is just beginning, and should be replete with rapid-fire developments over the next few days, I'll save more on that case for later.