Jay, I must say publicly what I told you privately after the oral argument in the Pleasant Grove City v. Summum argument.  You did a very fine job.  You also know, though, that I believe it was a great job defending an indefensible position.

Several of the justices join you in one fundamental error: religious expression is not the same as expression on political, economic or cultural matters.  How do we know this?  It is right there in the framing of the First Amendment.  “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”.  There is no comparable prohibition against “establishing” (as in preferring or promoting or endorsing) any other kind of activity.  Indeed, we have elections where we the people decide what kind of  secular “values” to embrace based on arguments of candidates.  Should we “share the wealth”?  Should we foster the wearing of flag pins?  Should we embrace “English only” in our schools?

So, of course, the government doesn’t have to add Ronald Reagan to Mount Rushmore or accept a “statute of tyranny”.  When government “speaks” about best presidents or embraces the principle of liberty, it has every right to reject alternative views.  However, it is supposed to be scrupulously neutral in regard to religion.  If you are correct that Pleasant Grove City “selected” a religious message by accepting the Ten Commandments monument 36 years ago, then it violated a fundamental principle that we don’t let governments be selective about the religious views it adopts–choosing one while rejecting “competitors”.

As I was watching the argument, I did have many moments of doubt that I was on this planet and not on some alternate astral plane.  Since the case had not been argued as an “Establishment Clause” case, the justices had to try to avoid that “elephant” in the room.  This is all about a religious monument; it is not about a selection process for library books or pieces of art in a museum.  Their analogies to such matters were strained to the breaking point.

I hope the justices see the wisdom of rejecting the claims of both sides in this case and sending it back to trial on its proper ground: is this an unconstitutional endorsement of some religions and rejection of another.  Frankly, I thought the New York Times editorial board had it right when it noted: “The founders found this sort of religious preference so odious that they included a specific provision in the First Amendment prohibiting it”.  ( I also appreciated that the paper praised the friend of the court brief filed by Americans United and the American Jewish Congress in this regard.)

We’ll see what you “hath wrought” sometime in the spring.