Legal Commentary

Since Dan has not seen fit to cut off my access to Prawfsblawg just yet, I will just add one more vague, ill-formed parting thought before signing off and moving on to my next guest blawging stint (at The Faculty Lounge).

I am somewhat obsessed with the constitutional (and other) issues surrounding religious government speech, and particularly by religious symbolism on government property. I have thus been delighted by the offerings the Supreme Court has held out to me in that realm over the past few years, from Van Orden v. Perry and McCreary County v. ACLU, to Pleasant Grove City v. Summum, and, most recently, Salazar v. Buono.

Of course, these latter two cases were not straightforward Establishment Clause challenges as many of the earlier such cases were (or at least they were no longer, by the time they reached the Supreme Court). Rather, Summum turned primarily on whether the Free Speech Clause required Pleasant Grove City to allow the Summum religious group to erect its monument in a city park where, among other things, a Ten Commandments monument stood. Buono involved the question whether an Establishment Clause challenge to a Latin cross erected as a war memorial in the middle of national park land in the Mojave Desert was affected by the Government's attempt to transfer the land on which the cross stood to a private party.

What is interesting to me about these cases is the shift one can observe to viewing the problem as one of social meaning (as in Van Orden, for example) to one of property rights and ownership of speech.

There are likely numerous doctrinal and social reasons for the shift. Perhaps it was inevitable that this particular set of doctrinal problems would arise once the Court gave its OK to religious symbolism on public property in Lynch -- once one type of religious symbol was given the green light, it was surely only a matter of time before other religious voices would clamor to take their place in the public square.

Still, I am troubled by it. Perhaps most troubling is the way in which the rhetorical and logical framework of property rights may tend to encourage us to think of exclusion and inequality as inherent and natural. Indeed, exclusion and inequality may be perfectly acceptable ordering concepts for determining property rights, but they are completely inimical, in my view, to Establishment Clause values.

These are the half-baked thoughts that are at this point rattling around my mind and hoping to make their way into a draft; comments and suggestions are welcome. (Incidentally, both Nelson Tebbe and Joseph Blocher raise some interesting points quite relevant to my line of thinking here in their contributions to a wonderful online colloquium on Summum some time ago in the Northwestern Law Review Colloquy)

I should add one last note/plug: Case Western's Law Review will be hosting a symposium on the subject of "Government Speech" in November 2010. Keep an eye out for details - it promises to be a fascinating one!

Many thanks to Dan and the others! Till next time.