A Serious Sort of Local Government Preferential Treatment Is Before the Supreme Court Today

See update below
A central element of government ethics is that preferential treatment is bad. Preferential treatment is bad when it involves favoring officials' businesses or family members over other businesses and individuals. Preferential treatment is even bad when it involves officials' favorite charities. And preferential treatment is especially bad when it involves officials' religions.

What makes me say that this is especially bad? Because it's in the Constitution. The first words of the First Amendment read, "Congress shall make no law respecting an establishment of religion." This means that not only Congress, but also local and state governments, cannot establish any religion as the religion of its community. The Establishment Clause was interpreted by a unanimous Supreme Court in Everson v. Board of Ed., 330 U.S. 1, 15 (1947), as saying that government may not "aid one religion, aid all religions, or prefer one religion over another."

This issue is before the Supreme Court today in Pleasant Grove City, UT v. Summum. In this case, a city government allowed a Ten Commandments monument to be placed in a city park, but then rejected a request by a small religion called Summum to place its Seven Aphorisms in the same city park. The Tenth Circuit Court of Appeals ordered the city to allow the monument in its park, but solely on free speech grounds. But this isn't about free speech, it's about preferring one religion (or group of religions) over others (and over atheism, as well). The reason that it is wrong for a city government to have anything to do with religious monuments is that this is a form of establishing, or preferring, one or more religions over others.

The U.S. was founded to get away from the establishment of the Church of England. It's no accident that the longest word in the English language has to do with this controversy: antidisestablishmentarianism, that is, opposing the ending of the establishment of the Church of England, that is, favoring its continued establishment.

Ending the preference of a religion by the government was at the heart of our nation's creation. Let's hope that the Supreme Court does not shy away from this issue when it reconsiders this case. This is a good occasion to teach people the importance of a government not treating people preferentially. The consequence of such a preference should be that every religion, even ones we've never heard of, should be given the right to put up monuments to what is important to them, even if it means flying saucers or demons. This would be a concrete monument to American diversity.

And then once the message has sunken in, perhaps atheists should be allowed to have all the monuments taken down.

Update: On February 25, 2009, the Supreme Court ruled on this case. The majority said that the Establishment Clause was irrelevant. The majority decision referred to a new thing called "government speech," insisting that the government can say what it wants, within some limits.

Only Justice Souter spoke in depth to the serious limit the Establishment Clause places on government speech, and only Justice Souter recognized the important of preferential treatment to the meaning of the Establishment Clause (see bottom p. 29 of the file).

Robert Wechsler
Director of Research-Retired, City Ethics

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