The Fraternal Order of Eagles (FOE), an organization founded in 1898, has been in the ten commandments racket since the early 1950s, when it handed out copies of the Mosaic law as part of its efforts to curtail juvenile delinquency. Thousands of the suitable-for-framing copies of the ten commandments, however, were evidently not making a significant dent in the ranks of juvenile delinquents, so the FOE decided that large granite monuments, plunked down in various governmental locations, would be far more efficacious. It seems, however, that no thought had been given to the possibility of dropping one of these massive monuments onto some of the most serious juvenile offenders, thus killing two birds with one stone, so to speak. Nevertheless, from about 1954 to 1985, as many as 4,000 of these monuments were deposited across the US, sometimes with help from the stars of the 1956 Paramount Pictures film epic The Ten Commandments, such as Charlton Heston (Moses), an early proponent, and Yul Brynner (Pharoah), who was apparently a late adopter.

The monument in question: nope, no religious expression here

Each of these monuments was like a constitutional time bomb waiting to explode in the nation’s courts. The problem is obvious: the establishment clause of the first amendment prohibits the government from setting up a state religion. Erecting a monument on government property that says something like “I AM the LORD thy God: Thou shalt have no other gods before me” tends to convey the message that the state is endorsing one particular religious viewpoint over all others, which is constitutionally suspect. But what if the government just passively allows a non-governmental organization, like the FOE, to erect such a monument? And what if that government doesn’t allow any other organization plop down a monument that displays a contrary religious message?

That’s the question that the supreme court encountered in the case of Pleasant Grove City v. Summum. The FOE had donated one of its monuments to Pleasant Grove, Utah, a community on the southern fringes of the Salt Lake City metroplex, in 1971. The monument stood in a public park which contained structures and artifacts related to the town’s pioneer past. The city fathers, apparently, thought that the FOE monument fit with the religious character of the community’s founders — although the FOE version of the ten commandments wasn’t the same as the Mormon version, but never mind. Yet when Summum, a religion that, unlike Mormonism, actually originated in Utah, went to Pleasant Grove with an offer to erect a monument displaying its “seven aphorisms” (example: Aphorism III “Nothing rests; everything moves; everything vibrates”), the city inexplicably turned it down.

Summum, it is true, may have been founded in 1975 by a guy called “Corky,” but it has already learned from more venerable religions that of all the bully pulpits in the US, the bulliest is the court system, and so it filed suit against Pleasant Grove. The federal appellate court held that Summum had a legitimate gripe: Pleasant Grove, it reasoned, couldn’t accept the ten commandments but reject the seven aphorisms. The city, undaunted, filed for review of the appeals court decision. At that point, Summum came up against a far more formidable obstacle than the Pleasant Grove city council: the supreme court’s confused and often contradictory jurisprudence on public displays of religious expressions.

The supreme court has past experience with the FOE and its pesky monuments. In Van Orden v. Perry (2005), a divided court held that an FOE monument on the grounds of the state capitol in Austin, Texas did not violate the first amendment’s establishment clause because the monument’s message, although religious in nature, wasn’t really really religious. Or something like that. It is, however, rather difficult to reconcile the result in Van Orden with other federal court decisions that have held that displays of the ten commandments are constitutionally prohibited in public schools or in courthouses or in the rotunda of the Alabama supreme court.

When the Summum case made its way to the supreme court, however, the establishment clause aspect of the case had disappeared. When the court heard oral arguments on November 12, the lawyers presented the case as a simple first amendment free speech case. Arguing an establishment clause case without relying on the establishment clause lent an air of unreality to the entire proceeding, as even the justices were quick to point out. Jay Sekulow, counsel for Pleasant Grove and hired gun of Pat Robertson and the religious right, was put in the unusual position of contending that this display of the ten commandments wasn’t really religious expression at all, or, if it was, it was, under the Van Orden test, not really really religious.

That, of course, is the Faustian bargain that Christian zealots must strike when they push for religious displays on public property. In order to get a creche erected on the front lawn of city hall, for instance, they have to contend, in effect, that the depiction of Christ’s birth is no more religious than a display of Santa Claus and his eight tiny reindeer. In the Summum case, Pleasant Grove was reduced to arguing that the ten commandments monument was the equivalent of the city’s first granary or firehouse, which were also preserved in the city park. In order to accommodate first amendment concerns, therefore, such religious displays must be secularized, which may satisfy the courts but which should be of grave concern for the truly religious.

Observers predict that the supreme court will have a relatively easy time with the Summum case. As an “equal access” case under the first amendment’s free speech clause, the case doesn’t present a difficult problem: the city can make decisions regarding content-based speech without necessarily offering equal access to opposing viewpoints. As pointed out during oral argument, erecting a monument to George Washington on public land doesn’t require erecting one to John Adams as well. But then that only makes sense in this context if the establishment clause of the first amendment is completely ignored. After all, the constitution doesn’t prohibit the state from expressing a preference among presidents the way it prohibits the state from favoring one religion over another.

What this means, in the end, is that the Summum case will resolve nothing. The court will produce yet another decision which will confuse the already confused situation regarding the public display of the ten commandments. Meanwhile, Summum will continue trying to get its seven aphorisms placed alongside the ten commandments, as it has already done in other cases, as much for the free advertising as for the principle of the thing. And evangelicals will continue trivializing their faith by pressing governments to put religious displays on public property.