The world we leave our children

[Eric Longley]

Alan Brownstein writes, in part:

<<My argument that the establishment clause requires government to prohibit
private expression that communicates a misleading message of religious
endorsement (and perhaps other misleading messages as well) in some limited
circumstances may be more problematic than the argument in favor of a
content neutral law.>>

I would suggest that if the government has a "content neutral law" which
isn's a disguise for favoring a particular religious viewpoint, or giving
that viewpoint advantages vis-a-vis secular discussion, then it has done
its duty.

If a municipality allows speakers, on a first-come-first-served basis, to
express their opinions, with the aid of microphones, from the steps of City
Hall, this might lead some to believe that the government is endorsing the
speaker's views. One day there might be a Jehovah's witness, the next day
there might be a Communist, the next day there might be a Nazi, and the
next day there might be a Catholic. Someone approaching City Hall on the
Jehovah's Witness's day to speak might think the government was endorsing
the speakers views. But in the same way, someone seeing the Communist or
the Nazi speak might think that the government is endorsing Communism and
Nazism (for the purposes of this discussion, we will assume that Communism
and Nazism are secular philospohies, and not religions, which they really
are).

In other words, the government is being neutral among speakers-religious
and secular. Some people who are not fully informed about the open-forum
policy might think the government was endorsing particular viewpoints, but
I don't think the Constitution would, for that reason, endorse the
suppression of either the Catholic of the Communist. The point is that, in
reality, there is no preference being given to religion, and if people
mistakenly believe the contrary to be true, that doesn't mean that the
mistaken opinions of such people should prevail.

The Supreme Court's *Pinette* decision goes too far, not because it
violates the above principles, but because it endorsed the idea that
leaving an object on public property, even with the government's consent,
is "speech." In this case, the Klan wanted to put a cross on the Ohio State
Capitol grounds. The Court felt that the grounds were a public forum for
unattended displays, since such private displays had been put up before.
The cross, as a form of religious speech, should also allowed to be put on
the Capitol grounds, despite Establishment Clause objections. But, although
the term "speech" has been given a very broad reading, I believe that the
line must be drawn somewhere, and leaving an object, unattended, on public
property, should be put outside the line. Placing an object in the Capitol
square is so far removed from verbal articulation-the traditional
definition of speech-that the Court should have said "enough! The First
Amendment doesn't cover this, so no compelling state interest need be met
before excluding this object, whether it be religious or secular."

With that kind of approach, the placement of certain unattended religious
symbols, whether crosses or long-standing pavillions in a public
park-should be subject to whatever regulations the government may see fit
to exact, provided the government does not discriminate *in favor* of a
religious symbol.

Eric Longley
Member, Independent Scholars' Association