Officials quitely remove a Ten Commandments plaque from the front of a Salt Lake courthouse. It's a victory for separationism and First Amendment rights attorney Brian Barnard. But does the tactic of using "equal access" always work? And should Atheists be demanding "equal access" with religious groups?

Web Posted: August 19, 1998

t is a sweet First Amendment victory for Salt Lake City attorney Brian Barnard.

    Barnard has been instrumental in defending state-church separation in Utah for years; he can now take comfort in a decision made quietly by local officials to remove stone tablets depicting the Ten Commandments from the front of a local courthouse building. County work crews removed the unconstitutional display last week, possibly ending controversy which began almost immediately after the Commandments were erected at the Metropolitan Hall of Justice in 1971 by the Fraternal Order of Eagles.

    The American Civil Liberties Union filed suit, arguing that the Decalogue monument was a violation of state-church separation.

    In 1994, a group known as Summum asked county approval in order to place a similar rock testimonial to seven of its tenets. The Summum groups believes in flying saucers and ancient Egyptian and meditative philosophy, according to the Salt Lake City Deseret News. Barnard, representing the sect, argued that the government could not allow one organization to express its beliefs on public property while restricting others.

   The U.S. 10th Circuit Curt of Appeals concurred, and found that by allowing the display of the Commandments by the Fraternal Order of Eagles back in 1971, the county had created a "limited public forum."

    "Allowing government officials to make decisions as to who may speak on country property, without any criteria or guidelines to circumscribe their power, strongly suggests the potential for unconstitutional conduct, namely favoring one viewpoint of another," wrote Chief Judge Stephanie Seymour on behalf of the three-judge body. The case was remanded to the District Court for further action.

    The quiet removal of the Ten Commandments monument, however, might render the original case moot. Barnard told reporters, "If the Ten Commandments monument is gone, there is no longer a forum..." He added that "there is still the question of damages and fee... If the county had done four years ago what it did last week, we could have avoided this lawsuit and this expense to the taxpayer."

   The question of free speech zones and equal access has become a complex one for the courts as well as First Amendment advocates. In some cases, courts have ruled that "traditional" areas which have been the venue for public demonstrations, protests or other example of public speech, must respect religious expression as well. In Philadelphia, for example, an area owned by the state located across from Independence Hall, has become a venue for a Christmas season creche erected by the Catholic League for Civil Rights, and a similar display to honor Hanukkah erected by Jewish groups.

SELECTIVE INTERPRETATIONS -- FREE SPEECH AND RELIGIOUS LIBERTY

    But as the Salt Lake City case suggests, public officials are often highly selective in what examples they endorse as cases of free expression, especially in matters respecting religious belief and activity. In Pennsylvania, officials in Allegheny County justified the display of a Christian creche in front of the local courthouse in 1966 on grounds of free speech, but balked at honoring a request by the Ku Klux Klan to place a cross in the same venue. A county commissioner griped, "It is obvious there are some groups who would abuse the use of the courthouse courtyard as a public forum." The request by the Klan to erect a 6-foot high cross resulted in a decision by the county to remove the creche and nullify the free speech zone. In 1995, the U.S. Supreme Court ruled that the Klan had the right to erect a cross on the lawn of the Ohio State house since the state had rendered that areas as a public forum, and permitted religious displays there. In Pittsburgh, though, religious organizations grumbled at the extension of free speech rights to the KKK. A local Baptist minister lamented, "I do not understand that whenever you're doing something right, wrong always rears it ugly head to neutralize it."

   And Salt Lake City (and the State of Utah) has a long history of a problematic relationship with both state-church separation, and the Equal Access Act. EAA was passed in order to guarantee that students in public schools had the right to form religious clubs and Bible study groups where the school permitted other non-curriculum related organizations. Last year, however, when Salt Lake students attempted to establish a gay rights support group, administrators and other officials resisted the effort. Even Senator Orrin Hatch (R-Utah), a supporter of the Equal Access Act, declared that the EAA "wasn't meant to apply to those sorts of groups" when discussing the gay support club.

    Equal Access as a weapon on behalf of state-church separation, while it can be effective, raises concerns, though.

    Should Atheists and separationists argue for "equal access" as a strategy in defending the First Amendment?

    There is no question that demanding "equal access" can be an effective tool in exposing not only official and clerical hypocrisy over the religious liberty issue, but in defending state-church separation. But is it always appropriate? Does such a strategy involve risks, or the need to emphasize other issues as well?

   ¶    In Tennessee last week, American Atheists State Director Carletta Sims successfully led the fight against a local public school "released time" program that bused students during class time to churches to receive religious instruction. The program, approved last year in a 5-2 vote of the Sullivan County School Board, was defended as an example of free speech and freedom of religion. Sims, opposing the released time, deftly employed political judo and decided to organize an "Atheist released time" program whereby those students who might be interested could learn more about nonbelief. Seeing potential legal pitfalls and other problems -- what if Satanists or Muslims or some other group demanded a "released time" program as well? -- the Board voted 5-2 to disband the activity.

   ¶    In Ohio, American Atheist activist Jerald Lasky challenged a Williams County decision to organize gospel singing on county courthouse property. Officials claimed that "everyone" had access to the property in order to promote their ideas. Lasky then called for an Atheist Solstice Display to test and challenge the "equal access" argument."

   ¶    In California and elsewhere, Atheists have challenged the presence of crosses and other religious displays on public property, including the enormous cross in San Francisco's Mt. Davidson Park. The Ninth Circuit Court ruled that such crosses are an unconstitutional endorsement by government of religion. A 57-foot high cross at Skinner's Butte in a public park in Eugene, Oregon was taken down; the land reverted to public open space, and the cross was removed to a local Bible college. But San Francisco officials attempted what American Atheist California Director Dave Kong charged was "an end-run around the Establishment Clause" by trying to "privatize" the religious display and sell the cross and the real estate it sits on to the highest bidder. Similar "auctions" or "sales" are taking place elsewhere.

    There are potential problems with this strategy, both practically and legally. Should Atheists or separationists attempt to purchase these monuments, or even replace them with a comparable display which endorses nonbelief? Should we be asking for "equal access" in these sales... or in public religious displays on government property?

   American Atheists has insisted that these displays are inherently unconstitutional, and cannot be "secularized" or rendered constitutional by the inclusion of numerous religions, or even Atheist/nonbeliever themes and symbols. Simply put, government should be held to the constitutionally required standard of "strict neutrality" in respect to religion and religious belief. We also caution that seeking "equal time" could locate Atheists in the public consciousness as being "just another religion" or a "belief" comparable to Christianity, Islam, Scientology or any other faith. It is not. It can also blur important legal and conceptual distinctions. The notion that numerous religious groups, or even Atheists can be included in an unconstitutional practice does not then render it acceptable and constitutional. Again, government policy and facilities must remain "strictly neutral" in respect to religion.

    "Equal access" can also be a bluff tactic that shrewd government agencies may call. Would we be prepared? If Atheists are granted the right to erect Solstice displays, monuments or make comparable statements on public property, we may be eroding our more fundamental, basic argument -- that there should be no such displays in respect to religion in the first place in such venues.

    In regard to the disingenuous attempt to "privatize" a religious monument by selling it and the land, we may face a similar predicament. If Atheists seek to obtain a "highest bidder" status, especially in order to erect the nonbelief equivalent of a cross -- an Atheist monument of some sort -- consistency would then require us to support the right of a Christian or other religious group which emerges as the "highest bidder" to maintain a cross, or erect a different religious display perhaps in the middle of a public park. Certainly in the case of the Mt. Davidson cross, where the cross and land are surrounded by park areas, a "private" sliver of religious expression becomes a ruse, and would have the effect of allowing the offending monument to remain, or a new one to be constructed. A similar question might be asked of an Atheist monument, too; would religious persons, going to a public park, not perceive a government endorsement of a statement in respect to religious -- in this case, nonbelief -- and thus a violation of "strict neutrality"? As Atheists and separationists, we have often argued that the presence of a cross in the midst of a public venue such as a courthouse, plaza or park "conveys the impression" of government support for a specific religion, and for religious belief in general. It is for these sorts of reasons that American Atheists has demanded that the offending government entities in San Francisco and elsewhere remove these unconstitutional monuments and displays altogether, as officials wisely chose to do in Eugene, Oregon, and not invent disingenuous schemes which seek to circumvent the thrust of the First Amendment. We would caution Atheists and other separationists to avoid such schemes; unfortunately, several groups which had originally challenged the Mt. Davidson cross have signed-off to the scheme to "privatize" the cross by selectively auctioning the land.

    Even when equal access is used as a tactic, Atheists should always emphasize the limits involved. In Tennessee, Ms. Sims was adamant that she opposed the "released time" scheme as a constitutionally suspect activity; Mr. Lasky also noted that he was merely testing the sincerity of local officials in justifying the gospel singing program as a form of "free speech." When pressed, officials will rarely be consistent in endorsing freedom of expression for groups and views which they consider to be unpopular or repugnant.

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