The Case of the Seven Aphorisms
Let's stipulate: Summum is weird. With its pyramids, mummification, nectars and hairless blue aliens, this religious organization (founded in 1975) offers an existential stew of transcendental Gnosticism and particle physics: Isaac Luria meets "Star Trek Voyager." But, as my husband would be quick to point out, yours truly has been known to fly into a panic when a meat fork touches her milk sink, shrieking and driving the offending utensil deep into the dirt of the kitchen avocado plant and then waiting the ritual interval until its kosherness is mystically restored. All of which merely illuminates the First Aphorism of Religion Cases: Only the religious convictions of other people are weird. Yours are perfectly rational.
Mormons settled the town of Pleasant Grove City, Utah, in 1850. Since 1971, the town's "Pioneer Park" has featured the usual assortment of gardens, trees and other historical relics, which sit alongside a massive permanent monument to the Ten Commandments -- one of many such monuments donated by the Fraternal Order of Eagles (working to reduce juvenile delinquency) and Cecil B. DeMille (working to promote his movie "The Ten Commandments"). In 2003, Summum's founder, Summum "Corky" Ra, requested permission to donate a monument to the park celebrating the Seven Aphorisms upon which the group's beliefs are based. (The Seven Aphorisms are, in brief: the principles of psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender.) Summum holds that these aphorisms were revealed to Moses at Mount Sinai, but he demurred because his people were not yet ready for them. The Decalogue was the rewrite.
The Pleasant Grove city council denied Summum's request to erect a monument. Summum sued, alleging that their free speech rights had been violated because the city could not display the Ten Commandments while denying the Seven Aphorisms. Summum lost in federal district court, prevailed before a three-judge panel of the 10th Circuit and then blew the minds of the entire 10th Circuit, which ultimately declined to hear the case en banc. The city appealed. This brings me to the Second Aphorism of Religion Cases: They invariably represent the most forcefully argued, passionately defended constitutional gibberish ever produced in the federal courts.
Which takes us to last Wednesday's hearing. "What is the government doing speaking and supporting the Ten Commandments?" Chief Justice John G. Roberts Jr. asked Jay Sekulow of the American Center for Law and Justice. Sekulow replied that the display is 100 percent Establishment Clause kosher in light of the Supreme Court's ruling in a 2005 Ten Commandments case, which upheld a Texas display of them (on the same day it struck down a rather similar display in Kentucky). Justice Stephen Breyer was the deciding vote in each of those cases, which -- read together -- stand for the current Third Aphorism of Religion Cases: Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer.
Of all the Summum aphorisms, my favorite is probably "everything vibrates." Whoever wrote that had yet to meet Justice Clarence Thomas, who spent last Wednesday morning, as he does every morning of oral argument, in perfect, motionless repose.
The Bush administration is on the side of Pleasant Grove in this case. Justice John Paul Stevens asked Deputy Solicitor General Daryl Joseffer whether the government, when it erected the Vietnam Memorial, could have decided "not to put up the names of any homosexual soldiers." Yes, said Joseffer: "When the government is speaking, it can choose who to memorialize and who not to."
Breyer responded that all this law is making him crazy: "The problem I have is that we seem to be applying these subcategories in a very absolute way." Thus spake the vote-one-way, vote-the-other-way justice of the last two Ten Commandments cases. Hence the Fourth Aphorism for Religion Cases: Doctrine is not your friend. Those six-part tests for limited public forums vs. designated public forums vs. displays of religious items on public grounds sometimes create more problems than they solve.
Pamela Harris had 30 minutes to represent Summum, and Roberts hit her with the hypos: "You have a Statue of Liberty; do we have to have a statue of despotism? Do we have to put any president who wants to be on Mount Rushmore?" Harris replied that if a government wants to claim that its displays represent "government speech," then it needs to "adopt" or "convert" the privately donated monument into its own message.
Justice Ruth Bader Ginsburg balked at Harris's assumption that monuments and speeches are identical for First Amendment purposes: "From time immemorial," Ginsburg said, "public parks have been places where people can speak their minds. But I don't know of any tradition that says people can come to the park with monuments and just put them up." Even the most doctrine-loving justices seemed to be bothered by the practical problem of city parks becoming cluttered with hate monuments, weird stuff and, eventually, rusted-out cars. But the problems on the other side are equally glaring. Cities should not be allowed to exclude unpopular groups based only on the content of their message. The state should not be able to keep gay soldiers' names off the Vietnam Memorial. Just ask Moses whether it stopped being speech just because it was carved in stone.
And thus we arrive at the Fifth (and final) Aphorism for Religion Cases: Pulling a crystalline, cogent rule out of the murk of the court's First Amendment, public forum and Establishment Clause doctrine is an act of creation too complicated for mere mortals. In fact, after Wednesday morning's wild constitutional ride, anyone searching for clear, cogent rules can remember: Everything vibrates.
Dahlia Lithwick is a Slate senior editor.