Monday, September 01, 2003

Regarding the controversy over the Ten Commandments in Alabama, I think the issue turns on a couple of points. The determinative provision of the First Amendment is not the Establishment Clause but the Freedom of Speech. To the extent there is a conflict between these two provisions it arises from an overly broad interpretation of "establishment." The term "establishment" should be narrowly construed to mean exactly that: officially ordaining a public religion. It should not mean "accommodation" or even "endorsement." The value of the establishment clause is that it prohibits coerced adherence to a religious doctrine contrary to one's conscience. The mere display of religious materials in a public forum does not run afoul of this purpose.
Allowing an expansive interpretation of "establishment" invites the unneccessary entanglment of speech and religious freedom. Prohibiting religious expressions, be they the Ten Commandments or otherwise, is patently a content-based prior restraint. It is elementary interpretation of statutes, rules and constitutional provisions that two that are in seeming conflict will be read, if possible" so that no such conflict exists. In the case of the Ten Commandments this is easily accomplished by recognizing that "establishment" means exactly what it says, and no more.

1 comment:

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