There has been some discussion over the past few years about what to do with the aging and in some cases repeatedly defaced murals that adorn the pedestrian bridge over Lemon Street.
When I went to take some pictures recently, a new twist on the story occurred to me, and one which the ACLU-types don’t seem to have noticed: the promotion of Christianity on public property. On the east side support an actual Catholic shrine has emerged.
Read the rest of “Promoting Christianity on Public Property; Is it Kosher?”
This is probably a non-issue from a 1st Amendment perspective for a variety of reasons, including the fact it was apparently placed privately and, depending on how long the mural has been there, the city arguably has opened a forum to artwork. I presume that the city isn’t maintaining this art, so there isn’t government sponsorship nor government action, which is a predicate for a 1st Amendment violation.
We have already had some interesting discussion about this at our blog.
One view that has been presented makes the distinction between a work of art as a cultural expression, versus the existence of an active Catholic shrine on public property.Under this view the government action is really inaction – to do nothing – a tacit endorsement.
What then would stop similar shrines of all denominations and creeds from popping up on any public property?
The real issue is who put it there – public versus private. If private, it doesn’t matter whether its a shrine or art. Indeed, who gets to make that determination? The city cannot do so, because it would then be substituting its OWN view (art or religion) for those that put it there – in effect “establishing” religion by establishing motive. The public also doesn’t get to make that decision, because to do so would permit public misconception to create a potential 1st Amendment violation (in essence a helcker’s veto).
Presuming that a private person(s) put these at the locations, government innaction is generally not an endorsement of religion and it would be a rare day indeed for a court to rule that a government’s failure to remove a religious depiction put there by private parties amounts to endorsement; particularly in light of the city’s dismal enforcement of grafitti ordinances in general. Indeed, I would argue that removing these items would actually be the 1st Amendment violation, because the city would be treating religion differently than non-religion: By removing a religious painting while not removing grafitti in public areas, the City is effectively establishing a policy of anti-religion.
Interestingly, perhaps the best argument to bring down the items is that they amount to trespass on public property. However, in order for that strategy to work, the city would have to establish that it is taking action to remove all grafitti, not just some.