Decorative Scales of Justice in the CourtroomWritten by Don Byrd

In April, Arkansas Governor Asa Hutchinson signed into law a bill authorizing the state to display a Ten Commandments monument on the State Capitol grounds. As I wrote at the time, government-sponsored religious displays are a bad idea. 

A perhaps even worse idea, however, is to allow displays honoring one religious view while rejecting displays honoring another. Yet, the state recently denied an effort to similarly authorize a Hindu statue on the Capitol grounds.

Is any of this legal? That is a tougher question of constitutional law than you might think.

The Supreme Court has ruled Ten Commandment displays unconstitutional in some contexts and constitutional in others. So, Arkansas’ monument may be lawful depending on the context of its presentation. The Court has also said that a state has a right to choose its messages. So, Arkansas is not required to allow a Hindu statue just because someone asked.

But as law professor Noah Feldman helpfully unpacks in a column for Bloomberg News, a state that does both (allowing an otherwise constitutional Ten Commandments display while denying a display with a different religious message) may be on more questionable ground.

Here is an excerpt:

The catch is that, even when the government is speaking, there’s at least one constitutional limit on what it can say: It can’t endorse religion. The reason is the establishment clause of the Constitution as interpreted by the Supreme Court. Arkansas can’t put up a statue saying, “Christianity is the right religion and Hinduism isn’t.”

Rejecting the Hanuman statue makes their case harder. It’s pretty clear that the Arkansas Legislature wants to endorse Christianity and doesn’t want to endorse Hinduism.

Conversely, if the Hanuman statue had been accepted, the courts would have been more likely to uphold the Ten Commandments monument. Then it would appear that Arkansas was aiming to allow a diverse range of cultural and religious traditions to be represented on the state capitol’s grounds.

The upshot is that, if religious people want to express their values symbolically under the current legal regime, they probably need to embrace religious diversity.

Better yet, leave all religious monuments to homes and religious institutions and off of government property. As the Baptist Joint Committee’s Holly Hollman wrote, in a column about Ten Commandments displays, “Government-sponsored religious monuments are always constitutionally suspect and theologically questionable.”

For more, see the BJC’s page on religious displays.