Lynn v. Sekulow

Your latest post on Summum should make it clear to lawyers and non-lawyers alike that this case was, is and should forever be seem as a case about whether the government can prefer some religions over others and promote their preferred messages.

If, as you put it, Pleasant Grove is “engaging in government speech which gives the government authority to control its message”, you seem to be saying that “control” is always constitutionally proper even if the “control” is the choice of a favored religion.  If the President or Congress says “Christianity is the national religion” he or it is allowed to do so because it is “control” of its message.  You can’t mean this.

Your analogy between picking a Ten Commandments monument over a Summum monument in a park and selecting a book for inclusion or exclusion in a library is strained to the point of breaking the elastic.  Most libraries have vast unused shelf space, and with internet connectivity a “virtual” space as large as cyberspace itself.  Thus, a library’s inclusion of a particular book is hardly the kind of judgment of imprimatur that attaches to choosing giant monuments in an open park.

Let me also clarify one other point.  F. Scott Fitzgerald was a “fallen” Roman Catholic according to many scholars, but he wrote with a background of Catholic doctrine in several of his works.  Were he unshelved for replacement by Harry Potter, he could argue that the library was in fact making selection judgments based on religion: preferring wizardry to Catholic theology.  The Supreme Court decision in Pico would give him a framework in which to start.

All in all, if your argument prevails in its totality, you will be given a decision which affirms that where cities can pick and choose among religious icons it is those city governments “speaking”.  If that is the case, the conclusion seems inescapable that courts will not be able to approve the “tyranny” of the majority in selecting favored faiths while directing an animus againt other faiths (or non-belief) crying out for a place in the park. Is this what you really want? 

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