Speech by Government Employees

[Michael McConnell]

It seems to me there are two separate issues running
through the story of the Ten Commandments in the courtroom.

One is how to draw the line between state action and
personal (constitutionally protected) expression on the
part of a government official. Most seem to agree that the
judge's displays in his own office are personal (even
though he presumably conducts official business there), and
most (but not all) seem to think that displays on the wall
of the courtroom have a governmental character, and thus
may not be religious unless they are embedded within a
broader context. The important thing here, I think, is to
draw the line consistently--as the discussion between Art
Spitzer and Rick Duncan over the religious or lesbian
speech of teachers nicely illustrates.

A second is raised by Sandy Levison's post about the
ideological content of pictures. This is not really a legal
issue, but has to do with the standards of civility on the
one hand and tolerance on the other that "we" should
uphold in these matters. One the one hand, "we" probably
all agree that government officials should have a certain
degree of latitude, even when we disagree with their
choices. Reagan can give a position of honor to Coolidge
and Clinton can give the same position to whomever he
honors.  But the limit, I think, is civility. Some choices
would be so controversial and ugly that they would be
inappropriate. It would be wrong, I think most would agree,
for a judge to choose Roger B. Taney's portrait for the
central position in a courtroom, especially if the judge
were heavily involved in a civil rights controversy. The
fight over the Stars & Bars is a fight over whether this
symbol of the confederacy is uncivil because of what it
says to black Americans, or whether "we" should be tolerant
toward the pride exhibited by southerners in their history,
even while "we" are glad the South went down to defeat.

This is what makes the Ten Commandments case interesting.
There is a sense in which those who advocate exclusion of
the display wish to have this symbol placed in a category
with Taney and the Stars & Bars--as uncivil. Judges, they
say, have wide discretion to display what they wish on the
courtroom walls, but this is beyond the pale. By the same
token, that is why defenders are so passionate in their
position: they do not think the Ten Commandments are beyond
the pale in a pluralistic society.


-- Michael McConnell (U of Utah)