June 10, 2005

A Public Creation Display with an Escape Clause

The Tulsa Park and Recreation Board decision to place a display that tells a story of creation based on Biblical accounts raises a host of issues. Among the most interesting is the extent to which concern for compliance with the Establishment Clause of the First Amendment comes into play.

There was obviously some concern at the meeting, at least on the part of the Board's legal counsel. As Raw Story reported Wednesday,

Following the advice of the city attorneys, it must include a disclaimer that says the display is an example of one widely held view of origins. To prevent violating the First Amendment it should be placed in context alongside other cultures' creation stories [emphasis added].

From a more complete survey of the status and background see The Panda's Thumb where we learn that the Tulsa Beacon had this to say,

Mayor Bill LaFortune and mayoral aide Clay Bird have pledged their support for Christian display but Dan Hicks, who has pushed for the display, said he can’t count on their support. LaFortune has a history of making unfulfilled promises when it comes to Christian groups. Early in his term, LaFortune pledged his support for a Community Block Grant for Cornerstone Assistance Network but then abandoned the Christian organization when it was opposed by Councilor Susan Neal.

Hicks said his display, a series of photographs by Oregon photographer Rick Ergenbright from his book, The Art of God, should be presented because of the numerous displays of pagan religions throughout the zoo. "Either put them all up or take them all down," Hicks said.


In front of the elephant compound is a Hindu statue with the following information: "The Ganesha is a beautiful example of artistic expression, reflecting a cultural belief that is strongly influenced by the presence and power of elephants. This statue was hand carved from granite in Madras, India. As a symbol of wisdom and goodwill, the Ganesha is said to bring luck to students preparing for exams."

"Ganesha is the son of Shiva," Hicks said. "He is the first god a Hindu chants to. This violates the first and second commandments (of the 10 Commandments) and it is very offensive.” [emphasis added]"

Hicks apparently agreed to a disclaimer and the possibility that there might be displays of other creation stories.

First, full disclosure: I know only little about the legal history of the Establishment Clause embodied in the First Amendment to the Constitution. What I offer below is more or less an uncritical acceptance of the opinions of people who I believe do know something about this topic mixed liberally with my own opinion. I will try to make clear which is which. If I fail, it is likely best to assume that you are reading my opinion.

I will start with what I understand to be a couple of tests used by the Supreme Court for compliance with the Establishment Clause, then I will discuss the frieze in the Supreme Court chamber by way of an analogy and then offer my opinion on how these things relate to the Tulsa Zoo display.

In Lemon v. Kurtzman, 403 U.S. 602 (1971) 403 U.S. 602 the U.S. Supreme Court, with Chief Justice Burger delivering the opinion of the Court, outlined what is known as the Lemon Test. The Lemon Test gives legal guidance for the interpretation of the Establishment Clause. It has three elements. (Here, I am following handouts from a University of Maryland.)

(i) a statute [or public policy] must have a secular legislative purpose

(ii) the principal effect of the statute [or policy] must neither advance nor inhibit religion

(iii) the statute [or policy] must not foster "excessive [government] entanglement with religion

But Lemon is not the only test suggested by the Supreme Court Justices. Dispatches from the Cultural Wars and the American Constitution Society for Law and Policy both discuss the Lemon Test and various criticisms of and alternatives to it. The American Constitution Society for Law and Policy notes that Justice O’Connor favors an Endorsement Test. "Justice Kennedy prefers the coercion test" and

Justices Rehnquist and Scalia support a more historically focused inquiry, looking at whether a practice was accepted at the time of the Framers and has continued to take place ever since. And Justice Thomas would apply the Establishment Clause to the federal government alone, giving the states free rein to deal with religion as they wish.

The endorsement test is fairly simple to state but may be hard to apply. Does law or policy amount to an endorsement of a religion or religious practice? In my view, the opinions of Rehnquist, Scalia and Thomas do not amount to a test. From the best I can see, Justice Thomas agrees with Rehquist and Scalia but does not believe that the Fourteenth Amendment applies to the First Amendment. Also, as best as I can see, a major problem with the position of Justices Rehnquist and Scalia is that it gives little or no guidance on practices that were unknown at the time of the Framers.

The example that I would like to use by way of analogy is Adolph A. Weinman's design of the friezes on the north and south walls of the Supreme Court. They depict the "great lawgivers of history." Menes, Hammurabi, Moses, Solomon, Lycurgus, Solon, Draco, Confucius, Octavian, Justinian, Muhammad, Charlemagne, King John, Louis IX, Hugo Grotius, Sir William Blackstone, John Marshall, and Napoleon are depicted in a fully integrated piece of art. Yes, Moses and Solomon are there but they are two of eighteen. They enjoy no special place. They are only a part of a troop of great lawgivers.

Now for how I see all this applying to the creationist display at the Tulsa Zoo: Let's start with the statue of Ganesha that causes Mr. Hicks so much heart burn. Does it establish religion under either the Lemon test or the Endorsement Test or any other test? Of course, no one knows because it has not been tried. But I think the answer is no. First, it has a secular purpose: to identify elephants with the larger cultural heritage of India. Presumably, the elephants are Indian elephants. Is its principle effect to enhance or limit religion? I think not. While Ganesha is clearly a religious figure, a god, for Hindus, nothing in what I have read or seen, certainly nothing in the statement that accompany it, would lead one to think that it advances or inhibits religion. Mr. Hicks clearly thinks otherwise but for reasons other than First Amendment reasons. I will discuss his reasoning below. Nor does the statue involve an excessive entanglement in religion as far as I can see. I would feel the same way if in front of the donkey exhibit there was a plaque indicating that donkeys played an important role in the life of several figures from Biblical times. We are dealing with interesting factoids and nothing more.

How about the endorsement of religion test: Again, I see no endorsement here. But I would note that endorsement involves motivation. As to coercion, there is clearly no coercion. However, if coercion becomes the universally accepted test for a violation of the Establishment Clause, we are all in for a lot of trouble.

Answers in Genesis offers one additional example of "GOD versus gods" at the Tulsa Zoo,

As you walk through the gates of the Tulsa Zoo in Oklahoma, USA, as I did a few months ago, you are soon met with a reminder of the religion of some native American Indians. A large globe declares: "The earth is our mother … The sky is our father."

They also allude to other examples,

By allowing Hindu, Native American and New Age religions with their symbols/idols at this facility, the zoo was discriminating against Christianity and other religions . . .

In addition, Answers in Genesis has an otherwise uncaptioned picture of an illustration that features a depiction of Tlatloc which itself includes the following caption. "The importance of rain is reflected in Pueblo art, as in this depiction of a Central American rain god, Tlatloc."

I am somewhat concerned with the Native American religious sayings and art, in part, because I believe that our government at the national level is "entangled" with Native American creationism in its repatriation of skeletal remains policies. However, I have no idea of the context of either the globe or the Tlatloc display. If they are in the context of relevant displays at the Zoo, I would interpret them in the same way I interpret the Ganesha display.

I have no idea what Answers in Genesis is referring to when it mentions "New Age religions." If there are such things at the zoo, I probably wouldn't like them either but for quite different reasons. My remarks on the Answers in Genesis concern about the globe are based on the assumption that it is the Native American saying that concerns them and not the fact that it is a globe. I further assume that the Answers in Genesis list of offensive displays is exhaustive, if not more than exhaustive.

Now let's look again at what has Mr. Hicks so upset with the statue and why he thinks the Biblical creationist display is a necessary corrective.

"Ganesha is the son of Shiva. He is the first god a Hindu chants to. This violates the first and second commandments (of the 10 Commandments) and it is very offensive."

Its not that he thinks the Ganesha violates the First Amendment of the Constitution of the United States but that it violates the first (and second) commandment(s). Let's remember what they say.

I am The Lord your God, Who brought you out of the land of Egypt, out of the house of bondage. You shall have no other gods before Me.


You shall not make for yourself a graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; you shall not bow down to them or serve them; for I The Lord your God am a jealous God, visiting the iniquity of the fathers upon the children to the third and the fourth generation of those who hate Me, but showing steadfast love to thousands of those who love Me and keep My Commandments.

These two commandments and the two that follow them tell how followers of "The Lord your God" should worship him. They are totally without any secular content or intent. By the way, I think the same is true of the whole Decalogue as it has come down to us but that is another post.

Mr. Hicks sees the Ganesha, and presumably the other items that offend him, as violating the Hebrew Bible commandment against other gods and the commandment against making graven images, idols. Whatever the legal status of the various representations, Mr. Hicks' position is clearly religious. And, for that matter, so is Answers in Genesis' motivation. They cite Isaiah 55:11, Hebrews 4:12, Romans 10:17 in support of their position. Not all the answers are in Genesis I guess. All three passages seem far more irrelevant than the first and second commandment. The depiction offends Hicks' and Answers in Genesis' religious sensitivities.

Before moving on, I want to make it clear that Mr. Hicks was not a member of the Tulsa Park and Recreation Board. He was, however, the acknowledged force behind the decision to include a Biblical creation account among the zoo's displays. It therefore is not a very large leap to say that those who voted for the creationist display shared his motivations.

It is interesting that Hicks and the Board are willing to moderate their offense if the Biblical creation display is allowed. They even accept the disclaimer. They even seem to accept legal counsel's opinion that the Biblical creationist display "should be placed in context alongside other cultures' creation stories." They are willing to accept just about anything to get their own religion's ideas of creation in a display at the zoo. Rather than attack the displays that offend them, that they find idolatrous, they want Biblical creationism at almost any cost. To be sure, Mr. Hicks is reported to have said, "Either put them all up or take them all down." But what does "them all" mean in this context. Not a single one of the displays, which so offend Hicks and the majority of the Board, are creation stories. The saying on the globe comes closest but is far from an explanation of the origin of the universe or any part of it.

If the Board was truly interested in creating a display in which the creation stories from many cultures were told, they would have asked staff to present a unified policy and presentation providing an integrated display of a wide range of creation accounts, just as the friezes at the Supreme Court present a unified presentation of the great law givers. I, certainly, would not be opposed to such an approach. But what they actually approved is a display of one religions belief with regard to creation with a vague suggestion that, if they were forced to, they would add other displays at a later time. The way it will really work is that, when challenged, the Board will first claim that the "pagan" displays currently at the zoo when combined with the new Biblical creation display provide a balanced non-sectarian presentation. When that fails, they will claim that they planned to add other creation accounts all along.

The motivation for this new display is unambiguously to further the interests of one religion. Whatever the legal status of what is already there, this display does not pass the Lemon or the endorsement test. However, I do think that the disclaimer combined with other creation stories would stand up to legal scrutiny, but just barely. I continue to entertain the false hope that as a society we would seek to avoid Constitutional conflicts involving our rights as citizens by wide margins rather than see how close we can cut it and still get by.

One last point, the opinion of counsel mentioned "cultures." I'm never sure what anyone means by this word and I'm even less sure when a politician or lawyer uses it. The exact words were, "other cultures' creation stories." The antithesis of "other cultures" must be "our culture." What counsel is saying is that the Biblical creation story is the creation story of "our culture." He may not have meant it that way, but you can be very sure that his audience understood it that way. Unfortunately, it is probably correct to think that at least a plurality, if not a majority, of Americans accept one or another interpretation of the Biblical account. But we are not talking about what any grouping of Americans' beliefs; we are talking about what a governmental agency sets as policy. And under any interpretation of the First Amendment (excepting perhaps Justice Thomas' and Justice Kennedy's) the attempt by a governmental body to identify the Biblical account of creation with American "culture" is against the Construction of the United States.

Posted by DuaneSmith at June 10, 2005 03:45 PM | Read more on Current Events |

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