The Indiana Jones Solution
[cross-posted at CourtZero]
I have a proposal, a very possible solution to many of the Establishment Clause cases and the countless lawsuits brought by the ACLU and other groups over religious iconography. You will think I’m kidding, but I’m not.
Readers of this site are well aware that litigation has been going on for decades, with no end in sight, over displays on public land of religious symbols. I don’t believe that I need to provide links to establish that the hunt is on to eradicate displays of the Ten Commandments, crosses and the like, and that many of our cultural symbols have already been forbidden by judges (in the very recent history the Alabama Supreme Court display of the Ten Commandments, the Mount Soledad Korean War Memorial and the Mojave Desert WWI Memorial come to mind, but that doesn’t even scratch the surface). At least two Ten Commandments display cases came before the US Supreme Court last year with results unsatisfactory to nearly everyone.
I have a solution, and Indiana Jones is the one who showed it to me.
Bear with me, please. This is going to take a few steps in logic.
At the end of the movie Raiders of the Lost Ark (spoiler warning, but I’m thinking that won’t be a problem since the movie was released 25 years ago), Indiana Jones turns over the Ark of the Covenant, after a difficult and action-packed quest to find it, to the government of the United States of America. The last scene of the movie is of the precious religious and cultural treasure being placed in a nondescript crate and forgotten in an enormous government warehouse. The scene suggests that the Ark would be forgotten and never see sunlight again, after everything Indy had to go through to recover it.
Once again, I don’t think I need to provide links to establish to your satisfaction that the Ark of the Covenant is, in fact, a religious symbol. I’m told that the Hebrews say that its construction was ordered by God Himself, and that it contains the actual stone tablets of the original copy of the Ten Commandments. I mean THE Ten Commandments, not just a display of the Ten Commandments. Imagine if the movie was true and an archaeologist really had found it. Wow. If that’s not enough to make a ninth circuit judge run around in increasingly tighter circles with his or her hands waving wildly in the air and screaming, or to cause the remains of Roger Baldwin to combust in the grave, I don’t know what would.
Like most people of my generation who saw the great effort and perils that Indiana Jones faced in finding the Ark (snakes!) and rescuing it from the cynical and occult motivations of the Nazis, I find myself wondering about the last scene in Raiders of the Lost Ark: what happens next? Holy cow, that can’t be all there is!? After all that, the thing just gets crated up?
By the way, where is the Alabama Ten Commandments display associated with Judge Roy Moore today?
Now imagine with me that a sequel to the movie, a kind of bridge piece between Raiders and that next movie with the blonde and the kid called Short Round was made that showed us that the all of Indy’s efforts were not for naught, and that the Ark got displayed at a museum, presumably a publicly-owned one.
Would that be unconstitutional? Would the ACLU approve of the display of the actual Ark of the Covenant, if it exists, on federal land? The evidence seems overwhelming that they would not approve, and that a federal judge would order it destroyed. Or maybe not. Maybe this example leads us to the Indiana Jones solution to Establishment Clause cases concerning religious icons and symbols.
Here is what I propose, and despite the tone of my writing, I assure you that I am serious: cities and towns and counties faced with a judge’s order to remove or cover or destroy a religious symbol on public land should convert that display or land into a museum. It would be a Museum of Forbidden Iconography and Symbology (MOFIS). It’s marvelously simple, really: the county officials who are ordered to remove, say a Ten Commandments display in front of a courthouse could vote to convert the fraction of an acre on which the display sits into a museum, and attach an historical marker that explains that this is an historic display to memorialize objects forbidden by American jurists.
Read that last paragraph again. If you’re done laughing, let’s think about this. There is plenty of precedence for this, and Justice Breyer would be happy to know that I’m taking cues from foreign sources. When I lived in Berlin during and after the time when the Berlin Wall fell, I visited a museum in what was East Berlin that displayed “forbidden art”, a display of paintings that the Third Reich government had decided could not be publicly displayed. Tame stuff, and fascinating to wonder why that government was threatened by the art. I also visited a display of verboten kunst (forbidden art) in a former East German guard/watchtower along the Wall that displayed art that was forbidden by the communist government of East Germany. Think of your own examples. Think about whether or not a fragment of the head of one of the giant Buddha statues blown up by the Taliban in Afghanistan would be legal to display in a museum as an example of a religious symbol outlawed by judges. Either we are permitted to remember the past, or we are not.
Here is where the wheels fall off the ridiculous and inconsistent car that is the body of American Establishment Clause jurisprudence. I say with all respect to conservative organizations like the American Center for Law and Justice and Liberty Counsel, that the ship has already sailed on whether or not religious displays are acceptable in the public square for what they are. The organizations I just mentioned regularly file briefs in court cases arguing that a cross or ten commandments display has some secular function or value, meaning that the battle over the constitutionally of purely religious symbols is long lost; the issue is already conceded that such displays have to have some historical value to be permissible.
So if that is the way it is, I challenge any and all of you to tell me how you would argue that establishing a series of exhibits of the Museum of Forbidden Iconography and Symbology would be unconstitutional. I believe that federal courts have painted themselves into a corner on this issue. I defy them to tell me that the public shall not be permitted to have a public and visible record of those things deemed unconstitutional by judges. Am I not able to read records of Jim Crow laws? Am I not able to read what was once the Fugitive Slave Act? Am I forbidden to lay my eyes upon an essay about the need for the prohibition of alcohol? According to the present state of constitutional understanding, all of those things either exhibit or explain unconstitutional things. Am I not able to see the ten commandments display that Judge Roy Moore had placed in the Alabama courthouse? If not, then we are far closer to George Orwell’s memory hole than we think.
To that end, I’ve registered the domain name MOFIS.org (Museum of Forbidden Icons and Symbols). Don’t go to the URL, there isn’t anything there yet, but if this post interests anyone as to the possibility of establishing such a museum as an umbrella to save things like the Mojave Desert Cross I wrote about last week, let me know. I’m ready to establish the appropriate non-profit corporation to do just that.
Thank you, Indiana Jones, for saving that old Ten Commandments display, if only fictionally. CourtZero and STACLU and whoever responds will take it from here.
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Posted by ArrMatey on December 5, 2006 10:40 pm
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Syndicate Me
If the exhibits are consolidated into a limited number of museums, it would be completely constitutional. If each individual “exhibit” stays in its original location and comprises its own “museum”, it is a farce and will ruled as such.
You could probably get away with combining them, though. I could see how that would become a “historical context”.
Sad. Remember the days when America proudly claimed to be one nation under God? Remember when they had freedom to display their heritage and rich rooted religious history? Those were the days before the government started banning it all.
Jeff, I understand that your point is the obvious litigation defense to what I propose. I admire that you are able to readily identify the first argument against what I propose. But I don’t think that it would stand constitutional muster. The Smithsonian has exhibits all over the country. Various museums have exhibits in airports and government buildings. Anyone who has been in an airport knows that’s true. The location is not the constitutional key, and I suggest could not be.
The subject matter is the key. Are we allowed to view things forbidden by judges, or not?
No doubt. The location is not the key. It’s the location plus the context.
You could probably get away with assembling a MOFIS on a town square. Go ahead and gather X number of items and create a museum at the spot of one of the controversies. Or you could try sell each individual piece of land to a private organization, which would be free to do as it pleases with the land. However, the Mt. Soledad ordeal suggests that this would be no easy task.
Your proposal to declare each individual item, in it original location, a “Museum of Forbidden Icons and Symbols” will fail because any definition (
Webster,
Cambridge, Dictionary.com) of “museum” specifically refers to multiple items.
It’s probably safe to assume that no atheist ever proclaimed such a thing in the same way that you do.
I’m not sure who “they” are, but I’ll assume based on the context that you’re referring to local governments.
To that, I’ll just remind that you need look no further than slavery and racial discrimination to see the fact that a certain practice is not constitutional simply because it previously allowed.
I like your idea but I disagree with this statement.
“I say with all respect to conservative organizations like the American Center for Law and Justice and Liberty Counsel, that the ship has already sailed on whether or not religious displays are acceptable in the public square for what they are.†ArrMatey
I see this as a defeatist attitude. If the public is won over to hold to the truth then the judiciary will follow or be replaced.
“I see this as a defeatist attitude.”
I wish it were not so. I’m just reporting the facts, and that is the messy state of Establishment Clause jurisprudence.
I’ve attended court hearings on such matters. One needs only inform a judge that a cross will be visible at a high school graduation, for instance, and that’s all that’s required to establish the unconstitutionality of the graduation exercise. The burden then goes to those on my side of the issue to prove some kind of mitigating historical or secular value to the symbol. That’s just the way it is, and attorneys representing my side of the issue play along with that, because they don’t have much choice.
“It’s probably safe to assume that no atheist ever proclaimed such a thing in the same way that you do.” Jeff Molby
Shame on you for not thinking like an Atheist who does not put any value in such words and so has no objection to saying them. I wonder what Atheism is coming to.
That’s what I was alluding to when I added “in the same way that you do.” =P
“Raiders of the Lost Ark,” in case anyone is forgetting, was a fictional film. Were there a genuine Ark of the Covenant discovered, perhaps America would display it if it came into America’s possession. But the Ten Commandments represent nothing more than the mythological dicta of one religious sect and are not uniquely related to U.S. jurisprudence today. Ultimately redneck Roy Moore and those like him will die and be replaced by sensible, law-abiding citizens, and Christians will finally learn to keep their faith out of the law.