Monday, July 13, 2015

The War Between the States Isn't Over ... Next, We Face A Monumental Question

 As we move deeper into the battle over the display of Confederate flags, the maintenance of statuary and other memorials honoring Confederate dead, we can pretend that we are entering into uncharted waters, and have no way to plumb the depths of disruption that permitting the battle to proceed will entail.

Or, we can examine the history of thirty years persistent and unending attacks by groups such as the Freedom From Religion Foundation, the American Civil Liberties Union, and, yes, Westboro Baptist Church on public displays of monuments depicting the Ten Commandments. If we choose to study the past, we may not be condemned to relive it through this latest iteration of attacks on our common, and yes, dare I say it, Judeo-Christian heritage.

There has been a Thirty Years War on Ten Commandments displays in public places. The public notoriety of that War arose with the Supreme Court’s decision finding unconstitutional a statute requiring the posting of the Ten Commandments on the walls of every classroom, in every school building, in every school district in the Commonwealth of Kentucky. Then, in Stone v. Graham, a 1980 decision of the Supreme Court, the Court, in an unsigned opinion, concluded that the intended result of the ubiquity of the displays of the Commandments was disconnected from any legitimate pedagogical purpose.

That observation compelled the Court to conclude that the statute violated one of the tests the Court uses to measure whether government actions violate the constitutional prohibition against Establishments of Religion. The Court’s decision did not, however, project an absolute prohibition on all possible public displays of the Ten Commandments. Rather, the Court relied on the absence of a pedagogical purpose in the pervasive display:
This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. [] Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commanadments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.
Subsequently, many cases have been brought in trial courts, and numerous appeals heard by the federal courts of appeal, on issues related to public displays of the Ten Commandments.

At the Supreme Court, however, the issue has only recurred in three additional cases. In one case, McCreary County v. ACLU, the Court concluded that a display of the Ten Commandments as part of an interior display in a public building violated the Establishment Clause. In the other two cases, the Court’s decisions permitted the continuation of the displays. In Van Orden v. Perry, the Ten Commandments were depicted on a public monument on display on the State Capitol grounds in Austin, Texas. In Pleasant Grove City v. Summum, the Ten Commandments were depicted on a monument in a city park.

Pleasant Grove City v. Summum is a case with which I am quite familiar due to my role as co-counsel for the City in their case at the Supreme Court.

During the skirmishes over the public display of monuments containing depictions of the Ten Commandments, I provided research and editing assistance to my learned co-counsel, Walter M. Weber when we were representing Pleasant Grove City, Utah. Back then, Pleasant Grove City, had been ordered by the US Court of Appeals for the Tenth Circuit in Denver, Colorado, to immediately allow a religious organization, Summum, to erect a monument in the City's Pioneer Park. The Tenth Circuit's decision proceeded from its determination that the particular park was a "traditional public forum," and that another monument, depicting the Ten Commandments, was a private monument that the City had allowed to be placed in the park.

I have published a brief guide to the right to free speech in public places elsewhere, and it explains the idea of the public forum in a bit more detail. For present purposes, the appeals court's decision that Pioneer Park was a "traditional public forum" simply meant (a) it was the kind of publicly owned property were we expect and often encounter others engaged in expressive activities and (b) the government's ability to restrict speech in the location is severely limited. The Tenth Circuit ordered our client, Pleasant Grove City, immediately to allow Summum to set up their proposed "Seven Aphorisms" monument. Our task was to obtain two decisions from the US Supreme Court.

First, Pleasant Grove City needed the Supreme Court to agree to consider its request to review the Tenth Circuit decision. To obtain review at the Supreme Court, except in a very small category of matters, a party asks the Court to consider their case. This request is a called a petition for a writ of certiorari. That "writ of certiorari," if the Court agrees to hear the case, is an Order to the court below to send up its record of the case.

Second, Pleasant Grove City needed the Supreme Court to agree with its position that, while Pioneer Park was a traditional public forum, the Ten Commandments monument belonged to the City, and by displaying it there, the City had not created a legal obligation for itself requiring that it put on display any privately owned monuments. To get to this second decision, however, we had first to convince the Court to consider the case.

The Tenth Circuit's decision had the potential to work substantial mischief across the United States. Hundreds of cities, thousands of counties, towns, villages, and hamlets, have public spaces, such as Pleasant Grove City's Pioneer Park. If the Tenth Circuit's legal reasoning was sound, every one of those parks, if they were home to a monument or sculpture that had been donated to the local government and placed on display there, would be opened to the donation of all manner of monuments, sculpture and displays of a permanent nature.

You actually already know just how vast the statuary and monumental holdings of American communities are if you give thought to your own life experience visiting States across the Nation. One of my tasks was to quantify just how extensive the reach of the Tenth Circuit's decision could be. It was while I was assisting Walter in his preparation of the petition for a writ of certiorari that I discovered a fascinating research tool maintained by the Smithsonian Institute. That tool, called SIRIS, allowed interested researchers to scour the Smithsonian's substantial informational database of artwork, statuary, and monuments. The database included more than the Smithsonian's own holdings. It included records of such items identified in one of several different national surveys of such works over many years. Our petition to the Supreme Court contained an Appendix providing the Court with a list of displays of particular relevance to that case.

I haven't used SIRIS since we won Pleasant Grove City v. Summum, Today, however, I used it again. I used the database today to try and plumb the depths of a looming national crisis. The Confederacy crisis, if you will, looms on the national horizon. We are hearing more and more stories about the offensiveness of displays that include the Confederate Battle Flag, or that honor Confederate soldiers. We have seen the removal of the Confederate Battle Flag from the South Carolina State House. We are about to witness the disinterment of the remains of Confederate General, Democrat, and KKK Founder Nathan Bedford Forrest and his wife, from their resting place in a Memphis, Tennessee park.

"The Purge" is just getting started.

Just how deep, just how extensive, the Purge will need to be, I think, can only be answered by asking, just how many signs, symbols, and memorials of the Confederacy are displayed across the United States. And it was that question I pondered when SIRIS came to mind. I located SIRIS on the Smithsonian Institute website.

SIRIS is a powerful tool. It provides results that extend far beyond outdoor statuary. An initial search on the site located well over a thousand items whose title or description included the word "Confederate." Eventually, I honed the search down to one that appears only to identify statuary and monuments of the Confederacy.  Here's the search I used. That search indicates nearly 500 items of statuary, monumental markers, plaques, busts, steles, and the like.

When you enter that search, here is what you'll see:

As the circled information indicates, this search produced nearly 500 results. Each item gets a separate summary report. The summary can be expanded and more detail, including photographs, sometimes obtained.

Here is the expanded view of the record entry for the North Carolina Monument at Gettysburg National Battlefield Park:

The circled button is the feature that allows a reader to expand the summary view to obtain further details on the item. From here, I learned that the sculpture was crafted by Gutzon Borglum. With the information provided, a wealth of additional information becomes available, including this webpage about the artist and the statue, and the following photograph was taken during the dedication of that monument, along with remarks by the US Government official accepting the donation of the monument:

I found the remarks of Major General B.F. Cheatham, reproduced below, of particular note. Gracious in victory and gracious in the passage of time, Cheatham engages in no recriminations against the Confederates of North Carolina. He doesn't spoil the memory of the beloved and lost of North Carolina's men who died at Gettysburg, by dwelling o'er long on the contentious causes of the Civil War.

Rather, Cheatham notes, with respect and honor, how the men of North Carolina served and fell there. His penultimate observation could guide all our considerations of these matters:  
Always opposed by superior numbers and with the advantage of position against them, their courage, discipline and leadership carried them to the very muzzles of the guns, and over by a kindly providence, which has taken away the pain yet permitted to remain every sentiment of pride, honor and intense admiration for the heroic accomplishment of our fathers.
Remember, there are nearly five hundred entries in the SIRIS system. That number likely represents over 400 objects scattered throughout the United States, principally in battlefield locations, and southern cities and towns. Also, remember, there are many, many more statuary or monumental items than those noted in the SIRIS system.

While time continues its inexorable work of removing us from any sense that we ought to have of the sensibility of the descendants of Confederate soldiers, sailors, and citizens, we have words like General Cheatham's rekindling that sensibility. If we actually undertake this maddening enterprise of removing emblems and markers of our history, the reminders of our national bloodletting, monuments to the loved and the lost, we should think carefully and long about the extractions we pursue, because the pain will be more than a root canal and more extended than the war these monuments recall.