Hail, Baphomet: A Monumental Argument in Oklahoma

Today, we’re talking about Satan.

You may have been following this story out of Oklahoma City, where a group of self-proclaimed Satanists has submitted a request for the installation of a seven-foot-tall monument to the Dark Lord on the state’s capitol grounds—close to a similarly sized monument to the Ten Commandments. It’s the latest step in a drawn out dance between the state and various minority religious groups, special interest groups, and the ACLU in Oklahoma City, and the next chapter in this nation’s mind-numbingly complex relationship with religious symbols and public buildings.

First things first: This isn’t actually about a cult of goat worshippers wanting to share their black doctrine with America. The design of the sculpture, as we see it, raises the monument close to the level of satire—a goat-headed Baphomet, enthroned in pentacles, with children smiling beatifically.

Monument Design. Source: Religion News Service.

The press release accompanying the unveiling of the design discusses how the monument will feature a “chair where people of all ages may sit on the lap of Satan for inspiration and contemplation.” (Source: National Journal) The sect itself, we think, isn’t asking for the content to be taken seriously (which is perhaps legally silly, for reasons we touch on below). The request, however, is serious indeed.

There is a statue depicting the Ten Commandments on the Oklahoma state capitol’s grounds. That is not uncommon; as religious supporters rightly note, Moses and the Decalogue are major symbols of ancient law incorporated in many public spaces, including in the United States Capitol and the Supreme Court. Resistance to stand-alone religious displays on government property, however, are also not uncommon—you [may] [recall] two high-profile Supreme Court cases in the last ten years discussing that very issue. These two cases, Van Orden v. Perry  and McCreary County v. ACLU of Kentucky,  heard in the same Supreme Court term, provide at least an entryway into considering how the Satanists are going to make out in Oklahoma.

The Decalogue cases are, at bottom, very similar: In both situations, a version of the Ten Commandments appeared in or around state property; in both cases, that display was approved of by a state authority; in both cases, the display upset someone, and that someone sued. In one case (McCreary County), the Supreme Court said the Ten Commandments were unconstitutional. In the other (Van Orden), the Supreme Court said the Ten Commandments were constitutional.

The inconsistency frustrated us, too.

There are a lot of distinctions one could make between these two cases. In McCreary, for example, the Ten Commandments appeared on the wall of a county courthouse, while in Van Orden they appeared outside on the grounds of the Texas state capitol. In McCreary, the installation was ordered by a county ordinance; in Van Orden, the monument was donated by a private organization. McCreary also featured some petty politicking on the part of the state actors, who repeatedly changed the objectionable exhibit after they had been sued in an attempt to keep the Ten Commandments up—and courts probably don’t like being messed with, especially to their faces. The facts are interesting; if you want to read the cases yourself, you can find McCreary here and Van Orden here.

The Ten Commandments at the Texas State Capitol. Source: Wikipedia

In Van Orden, though, the state was able to point to something other than religious motivation in posting the monument. The Texas capitol state grounds feature a bunch of monuments, all ostensibly related to Texas history—one of a fire brigade, one of the Texas Rangers, one of Confederate soldiers, etc.  Including a monument to the Ten Commandments in this collection, on Texas’s view, made perfect sense—because of the historical significance both of the Decalogue and Christianity had to the state. It wasn’t a religious installation at all—it was a civic monument.

Sure, you can say that, Texas—but the Ten Commandments are still the Ten Commandments, and still definitely a religious symbol. Why should their “historical significance” matter?

Like many things in law, it matters because the Supreme Court has decided it matters. When sorting between permissible and impermissible government usage of religious symbols, the Supreme Court uses something called the “Endorsement Test.” This test, simply stated, asks if a reasonable personaware of all the surrounding facts, would consider a particular religious symbol to be a governmental “endorsement” of the content of that symbol, as opposed to its mere use, or the mere acknowledgment of a religion. It’s why the Supreme Court can include an image of Moses carrying the Ten Commandments on a wall showing other sources of ancient law, but why a town in rural Missouri can’t use the icthys in its official seal.

In Van Orden, both the plurality opinion (the plurality opinion is the opinion with the most votes in a case where no opinion gets a majority of justices to agree) and Justice Breyer’s concurrence found the historical significance factor, well . . . significant. It created a relevant secular purpose for the inclusion of the religious symbol, and changed the calculus of that “reasonable observer” who would assumedly know about the other symbols on the capitol’s grounds, and know about the religious makeup of the state. It was a weighty enough factor for the Supreme Court to let Texas keep its statue, and order Kentucky to take its exhibit down.

You can see these arguments already playing out in Oklahoma’s early commentary responding to the Baphomet monument: State Representative Paul Wesselhoft went on record saying, “What will disqualify them has really nothing to do with Satan, as such. It’s that it has no historical significance for the State of Oklahoma.” (Source: KFOR-TV Oklahoma City) Oklahoma is setting itself up to reverse the reasoning in Van Orden, claiming that since Baphomet isn’t an integral part of Oklahoma’s history, to include such a religious monument on state grounds would be inappropriate endorsement of a religion—its hands are tied, and it *just can’t* include the Satanic Temple’s monument, regardless of how much it may or may not want to.

The Satanic Temple, on the other hand, is vying for a different sort of position: not arguing that its monument should be included under the reasoning and logic of Van Orden, but arguing that since one religious symbol has been “accepted,” other religious symbols must be as well. A Temple email read: “By accepting our offer, the good people of Oklahoma City will have the opportunity to show that they espouse the basic freedoms spelled out in the Constitution,” and that “Allowing us to donate a monument would show that the Oklahoma City Council does not discriminate, and both the religious and non-religious should be happy with such an outcome.” (Source: RawStory) This line of reasoning isn’t novel, either: a similar argument has made it to the Supreme Court in the form of holiday displays, where a display including a Christmas tree and a Menorah was found constitutional because it reflected the wider religious beliefs of the community, as opposed to endorsing a single religion’s holiday. The Satanic Temple’s argument may go that all it’s asking is to receive the same treatment as the majority religion in having its symbols displayed along with the majority’s.

Without falling too far down the (very deep) rabbit hole of United States religious jurisprudence, we think the Satanic Temple might be dancing on thin ice here. The First Amendment does indeed protect religious beliefs—but only sincerely held beliefs that are actually religious. A court sitting in review of this particular case would be able to ask whether a) the Satanic Temple is really a religion at all, and b) whether the plaintiff pushing for the monument’s construction actually believes what he or she professes. The tests for both a) and b) are themselves complicated, and we’ll reserve discussion of them for another post, but if the court finds in the negative on either of those points, the symbol ceases to be religious and reenters the world of the merely political—and the entire character of the claim changes.

This situation is exciting precisely because there is no “right” answer in law. Whoever ends up sitting in judgment of this case—and we’re rather confident that some form of litigation will result from this request, sooner or later—won’t be able to just “call balls and strikes” and apply existing law to the facts; even the Supreme Court of the United States doesn’t know what the law is here. We know that sometimes the government is allowed to use religious symbols . . . and sometimes it isn’t. Most everything else is in flux.

And that’s where we want to leave it for today: In flux. There is no court case here yet. There might not be a lawsuit for some time—city authorities have to consider the request, which takes time, and consider the best (read: most legally protective) way to reject the request, which also takes time. And then the Satanic Temple has to lawyer up, write its complaint, and file its claim—and that takes time. But we do think we’ll see plaintiff squaring off against defendant eventually.

The monument, we think, was designed to be explosive, designed to be rejected, and designed to force a conflict. This was done, we think, in part to generate this early media buzz that you’re seeing now—so that when a federal judge inevitably hears the case, part of the narrative is already written. A record of public donations, statements to the media, government responses, and public opinion will already exist, and can’t be denied by either party when the time comes to stand before a judge—and the public record can be critically important in a federal judge’s decision in matters of religion.

We’ll be watching this case develop, and certainly hope to revisit it several times here on COMMENTARIAT. Until then, Go With God. Or Hail Baphomet. Whichever. We aren’t sure.

Statement of Purpose

This is about legal journalism. It is about storytelling, and truth-telling, and what we want the free press to be.

It is also about history.

Shortly after the founding of the Republic, Benjamin Franklin Bache–the grandson of Ben Franklin, and editor of the Philadelphia Aurora–declared the free press to be a sort of fourth branch of government, as indispensable to a healthy democracy as its legislature and its executive. And while he would soon be arrested and tried for what he published in his own newspaper (alleged seditious libel), he was not wrong–in a nation that vests its citizens with ultimate decisionmaking authority in the form of the vote, the press takes on the role of educator-in-chief: A gatekeeper for the body politic, charged with sorting fact from fiction and presenting reasoned reporting to citizens whose duties in a democracy are best performed when informed.

This aspirational vision of mass media as the “school master of the people” stands in tension with another great and powerful force: profit. It isn’t difficult to see this tension play out today in the era of cable news and Buzzfeed “Top 25″ headlines: Commercial enterprises subsist on product sales. News, therefore, needs to be sellable. This can lead to the truly outstanding reporting of such publications-of-record as the New York Times and the Wall Street Journal . . . and it can also lead to the Global Sun and the New York Post. This is neither good nor bad–it’s just the market. But when the market begins to affect the content of so-called “hard” news, oversimplifying for the sake of audience or “bending” facts for the sake of ideology, journalism ceases to instruct and begins to actively harm.

Legal journalism operates by the same laws–at its best, it presents complex matters of policy, politics, and law in an understandable format, providing enough of a grounding to leave a reader informed without bogging him down in needless details or academic detours. At its worst, it reduces courtrooms and board rooms to spectacles and stands between the reader and honest comprehension of how the law impacts his or her life, and the wider society in which he or she lives. Perhaps more than many other “beats,” however, legal journalism lends itself towards drastic oversimplification. And, in some ways, that makes perfect sense: Articles are being written by legal laymen, for the legal laity, in an industry grasping to define the contours of its digital business model, without access to the legal databases depended on by lawyers, and under deadline. It is an unenviable task.

We think this is unfortunate–not only because of the central and growing impact of the law on each and every American’s life, but because we happen to think the law, legal news, and legal stories are pretty cool. We think the law can be interesting, can be exciting, and can be made accessible to everyone–J.D. or no–who wants to follow legal developments in a wider world than daytime courtroom television. We think everyone who wants to join an intelligent conversation on the law should be able to do so. This is our attempt in pursuit of that goal.

COMMENTARIAT provides synopses of major legal news items in the popular press, connecting its audience to primary sources and worthy commentary while remaining accessible to the everyday reader. It publishes twice weekly, on Wednesdays and Saturdays, and is written by a small group of enthusiasts in New York City.

We welcome any input–comments, criticisms, advice, tips–that you may have. Feel free to reach out to us at commentariat.blog@gmail.com.

–Commentariat

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