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Editor's Note: Yoder is a former editor and columnist in Washington and the author of “Black v. Jackson: A Study in Judicial Enmity.” He is at work on a novel about a Supreme Court appointment and the author of “Lions at Lamb House,” a novel about Freud and Henry James. 

ENCLOSURE - THE UTAH CASE

With their abiding good sense, the British have evolved an excellent forum for controversial views. Its emblematic monument is Hyde Park Corner in London, where mountebanks of every stripe may rant from their soapboxes without official hindrance -- but in a narrowly restricted area, well named a “corner” of a vast public space. If our own rules and practices for the use of public spaces were so sensible, the solution of the Utah case now before the Supreme Court would be obvious. Pleasant Grove City, Utah, which allowed a monument to the Ten Commandments to be placed in a city park but rejected a similar monument to the so-called “Seven Aphorisms,” also allegedly Mosaic, would designate a corner of the park for the display of monuments of every flavor. It would handle all applicants for such display on equal terms. Among other welcome advantages, ordinary patrons of the park would not have religious edicts thrust in their faces unless they wished to be exposed to them.

Are the Seven Aphorisms, whose sectarian sponsor wishes them displayed in public parks, of divine origin? It ain’t necessarily so. But that does not affect the legal controversy. The Utah case is typical of a growing tendency to constitutionalize even trivial municipal disputes. Smart lawyers for the Seven Aphorisms outfit claim that theirs is a free-speech case, and the response is that the  Ten Commandments monument was privately donated by the Order of Eagles. The latter claim is patently disingenuous. When the city fathers of Pleasant Grove City agreed to display the Mosaic rules, they did so by official act. It is therefore difficult to imagine how they may now, with consistency, reject the Seven Aphorisms on grounds that placing its monument in the park would be an official act, doubtless implicating the Establishment Clause. This is where legal hair-splitting leads. If the Supreme Court, having accepted this case for review, treats it as involving a mere issue of equality of advocacy (that is, free speech) the answer seems at once obvious and remarkably trivial for high-level review: Pleasant Grove must treat all advocates on equal terms. But if, as I suspect, some justices voted to review the lower-court decision thinking that this case offers a disguised opportunity to expand the display of religious doctrines and sentiments in public spaces (a cause dear to some “conservative” hearts) we are in for a contentious and unpredictable decision - and one with obvious Establishment Clause implications.

Originally, the purpose of the First-Amendment Establishment Clause (“Congress shall make no law respecting an establishment of religion”) was reasonably clear: It forbade congressional (that is, federal) interference with state “establishments of religion,” which in 1791 varied from established churches in some states to schemes of financial subsidy to church schools in others. That remained its primary bearing for a century and a half. Then the Supreme Court began to federalize the Establishment Clause in the World War II period and after, in cases involving the mandatory recital of the Pledge of Allegiance and public transportation for parochial schoolchildren. From these origins, a complex tissue of judge-made rules and formulae has sprung up and exfoliated, some of them sensible and necessary, some obscure and niggling, others mere exercises in judicial hair-splitting. Naturally, the more rules the more the controversy. The late Sen. Daniel Patrick Moynihan of New York, who advocated restricted tax assistance to inner-city parochial schools, once noted just such an oddity: The Court had said that it is constitutional to subsidize the parochial use of “instructional materials” of a neutral thrust, such as maps, but not textbooks. “What about a map in a book?” asked the senator. It was a rhetorical question but a searching one, as the Establishment Clause rules, regulations and distinctions proliferate. The Supreme Court’s acceptance of the Utah case may well signal the prospect of others -- whether useful or merely confusing is, as it were, in the laps of the gods.                                        

-- Edwin M. Yoder Jr.