The 100 Best Lists of All Time.

#1 is the periodic table of the elements and #2 is the Bill of Rights. I'll leave it to you to guess what #3 must be, with the additional clue that #4 is the 10 Commandments.

They say that 20-foot cross that the ACLU objects to was a gift from Woody Allen.

What a funny world we live in!

The ACLU of New Jersey threatened legal action against the Neptune school district after an attendee at last year’s graduation ceremony took offense to the building’s religious symbols and Christian-based references -- among them a 20-foot white cross above the auditorium’s entrance. The ACLU asked the school to remove or cover up the cross and three other religious signs, arguing their visibility during a public school event is a First Amendment violation....

The Camp Association said it could not cover the cross, said to have been a gift from movie director Woody Allen, who used the auditorium during shooting for the 1980 film "Stardust Memories."

Interestingly, if this case goes to court, the key Supreme Court precedent will be Van Orden v. Perry, the case about the 10 Commandments monument on the Texas State Capitol grounds, and that monument supposedly originated as a promotion for the Cecil B. de Mille movie "The Ten Commandments." From the oral argument in Van Orden:

Justice O'Connor: How did this monument get there? Was it in... is it true that it was put in as a result of promoting a movie about the Ten Commandments?

Mr. Chemerinsky: The record is unclear as to that. There are certainly many indications in the popular press that Cecil B. DeMille together with his movie, The Ten Commandments, worked with the Friends of Eagles to have these monuments put around the country. But there is nothing in the legislative history that links this particular monument to that.

And the cross is only said to be a gift from Woody Allen.

Where do all the religious stories come from? If there were movies back in Biblical times, what movie directors would be wandering around in those old Judeo-Christian stories? Anyway, I tried to find a YouTube clip showing the cross in "Stardust Memories," but I can't remember that movie well enough to know what scene it's in. I did run across this clip from Woody's "New York Stories" that has a little Larry David performance in it. And here's Larry David saying "Religion should be made fun of, it's quite ridiculous, isn't it?... If I really believed that stuff, I'd keep it to myself, lest somebody think I was out of my mind":

Tea Party people.

The shirt says "And in hell he lift up his eyes, being in torment. Luke 16:23. (Don't let it be you.)" I had trouble reading the numbers on the Biblical cite and at first saw that 16 as 18. I looked it up:

And a ruler asked him, “Good Teacher, what must I do to inherit eternal life?” And Jesus said to him, “Why do you call me good? No one is good except God alone. You know the commandments: ‘Do not commit adultery, Do not murder, Do not steal, Do not bear false witness, Honor your father and mother.’” And he said, “All these I have kept from my youth.” When Jesus heard this, he said to him, “One thing you still lack. Sell all that you have and distribute to the poor, and you will have treasure in heaven; and come, follow me.” But when he heard these things, he became very sad, for he was extremely rich.

I thought, wow, that is not the right Biblical citation for the Tea Party!

Religious monuments, government speech, Justice Breyer's "freak out" test, and Justice Stevens's Vietnam memorial hypothetical.

Dahlia Lithwick covers the oral argument in Pleasant Grove City v. Summum, the case about whether a city that has put up a donated 10 Commandments monument in a public park is stuck having to put up some other donated monument. (Here's the PDF of the transcript.) It shouldn't matter that the other monument represents a weird religion, should it? "Weird" is Lithwick's word:

With its pyramids, and mummification, and nectars, and hairless blue aliens, Summum is an existential stew of transcendental Gnosticism and particle physics: Isaac Luria meets Star Trek Voyager.

Lithwick quickly quips that it's always the other person's religion that seems weird, while your own religion seems "rational." But the reason the 10 Commandments seem more acceptable than the Summum "Seven Aphorisms" is not so much that we are not members of Summum -- maybe a few of you are -- it's that the 10 Commandments are a component of a long tradition that is elaborately integrated into the history of the United States.

That is the reason -- or part of the reason -- why the Supreme Court found -- in Van Orden v. Perry -- that it didn't violate the Establishment Clause for the state of Texas to have a 10 Commandments monument on its state capitol grounds. By the way, the 10 Commandments monument in Pleasant Grove is basically identical to the monument in Van Orden. The context is a little different though, in that the Van Orden monument has been where it was for more than 40 years, and the Pleasant Grove 10 Commandments only dates back to 1971. Also, the city of Pleasant Grove was founded by Mormons, and the 10 Commandments monument isn't the Mormon version of the 10 Commandments, so it doesn't reflect the history of the city in quite the same way.

Back to Lithwick:

In 2003, Summum's founder, Summum "Corky" Ra, requested permission to donate a monument to the park celebrating the Seven Aphorisms upon which their beliefs are based. (The Seven Aphorisms are, in brief: the principles of psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender.) Summum holds that these aphorisms were revealed to Moses at Mount Sinai, but he demurred because his people were not yet ready for them. The Decalogue was the rewrite.

Not surprisingly, the city doesn't want this monument in its park. But if they accepted the 10 Commandments monument from the donor (the Fraternal Order of Eagles), does it violate freedom of speech to reject the message Summum wants to express? Is it unconstitutional viewpoint discrimination to favor the Judeo-Christian speech -- in monument form -- over the similarly stone-carved Summum speech?

Summum isn't before the court as a religion case. It was brought as a free speech case, and, as Jay Sekulow of the American Center for Law and Justice learns about three minutes into oral argument this morning, if he wins this case as a result of the court's free speech jurisprudence, he will be back in five years to lose it under the court's religion doctrine. The more zealously the city claims ownership of its Ten Commandments monument, the more it looks to be promoting religion in violation of the Constitution's Establishment Clause.

Chief Justice John Roberts puts it to him this way: "You're really just picking your poison. The more you say that the monument is 'government speech' to get out of the Free Speech Clause, the more you're walking into a trap under the Establishment Clause. … What is the government doing supporting the Ten Commandments?"

Sekulow replies that the display is 100 percent Establishment Clause kosher in light of [Van Orden and its companion case McCreary]. Justice Stephen Breyer was the deciding vote in each of those cases, which—read together—stand for the current Third Aphorism of Religion Cases: Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer.

Is that really the law, you may ask, or is that some kind of joke? Here's the post I wrote about the cases at the time. Breyer's opinion was the deciding vote, and he eschewed any clear rule, opting instead for what he called called "legal judgment," "tak[ing] account of context and consequences measured in light of" the purposes of the religion clauses -- promoting tolerance and freedom.

Lithwick's line -- "Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer" -- is a joke with some truth to it -- and also some serious inaccuracy. It assumes a conclusion that is in issue: that the monument is a "government establishment of religion." And Breyer seems like too cool a character to be "freaked out" by anything. Plus, he votes against government religious expression much more than we'd see on anything like a "freak out" standard. (See McCreary.) It would make more sense to say Breyer permits government religious speech when the idea of courts stopping it freaks him out.

Lithwick notes that Breyer signaled his dissatisfaction with the doctrinal rules -- the "artificial kinds of conceptual framework." Breyer sent very similar signals at oral argument in Van Orden, which I noted at the time.

But it looks as though there is room for a clear rule here:

Justice Samuel Alito observes that there is a difference between free speech, in the classic sense of protests, leafleting, and speech-making, and hauling around massive granite monuments, then demanding public-forum analysis be applied to "the Washington Monument or the Jefferson Memorial." Joseffer says that when the government is "acting as curator," it can engage in viewpoint discrimination. In other words, it can choose the speech. "You can't run a museum if you have to accept everything, right?" says Scalia.

When government takes on the role of curator, it is no longer a question of the free speech of the original speaker. The government that chooses or rejects objects for presentation in one of its own displays is exercising its own speech, and it doesn't violate anyone else's free speech rights. It might violate the Establishment Clause, but that is another question.

Pamela Harris has 30 minutes to represent Summum, and Roberts hits her with the hypos: "You have a Statue of Liberty; do we have to have a statue of despotism? Do we have to put any president who wants to be on Mount Rushmore?"....

Even the most doctrine-loving justices seem to be bothered by the practical problem of city parks becoming cluttered with hate monuments, weird stuff, and, eventually, rusted-out cars.

I think it's pretty obvious that the city will win as the Justices (like Scalia) who support free speech for the government will have the support of the Justices (like Breyer) who look at real-world consequences and think practical thoughts.

But there still should be some hand-wringing over the one hypothetical that really did freak out everyone -- well, not Scalia, but almost everyone: What if the United States had decided to express itself by excluding the names of gay soldiers from the Vietnam memorial? Justice Stevens posed the hypothetical, and the Justices struggle with it. From the transcript:

JUSTICE BREYER: That seems to be the problem here. And what I have in this is the -- the problem I have is that we seem to be applying these subcategories in a very absolute way. Why can't we call this what it is -- it's a mixture of private speech with Government decisionmaking -- and ask the question, as we do in election cases, is the restriction proportionate to a legitimate objective? I know how you're going to answer that question. You're going to say: Of course, it is. But what's interesting me is, are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter? The answer to Justice Stevens's hypothetically is: Of course the Government can't do that because it's disproportionate.

JUSTICE STEVENS: I didn't get the answer. Did you --

MR. JOSEFFER [representing the United States, as amicus curiae]: Yes, the Government can choose to memorialize who it wants on the mall. When the Government is -- now, to be clear, that's under the Free Speech Clause.

JUSTICE BREYER: So what is the answer to the -- what is the answer to Justice Stevens's hypothetical? What is the answer to the homosexual hypothetical? What is the answer?

Breyer seems to be verging on freak-out mode there.

MR. JOSEFFER: The only question --

JUSTICE BREYER: Because that tests the theory.

MR. JOSEFFER: Well, as a matter of the Free Speech Clause, there are no limits on the Government's ability to speak freely. Under the Equal Protection Clause, the Establishment Clause, perhaps the Due Process Clause, there might be thought to be independent checks on the Government's speech. But the Free Speech Clause, whatever else it does, does not prevent the Government from speaking freely.

JUSTICE SCALIA: It seems to me the Government could disfavor homosexuality just as it could disfavor abortion, just as it can disfavor a number of other things that in -- in many States people are free to do. The Government can disfavor all of it, can't it?

MR. JOSEFFER: The Government would be powerless to do anything if it cannot first formulate and then express its own viewpoints....

JUSTICE KENNEDY: Does the law always require us to adopt an all-or-nothing position? Aren't there some extreme cases indicated by the hypothetical where the First Amendment does enter in? Do we have to decide this case that it's all or nothing?

So will the city win with a clearly stated rule, will the city win with a "legal judgment" based on the whole context, or will the city win based on a clearly stated rule that has an escape clause comprising Justice Stevens's Vietnam memorial hypothetical?

ADDED: Lawprof Chris Lund reads the transcript:

... Summum argues that the display was the Eagles' message in 1971, and it's the Eagles' message now. But that claim is really hard to square with the fact that the display has been owned and controlled by the government and has been sitting in a government park for 36 years. The Eagles haven't really been involved since 1971 -- so how is this their speech? So Summum's counsel says that the crucial thing is this -- it can't be the government's speech until the City officially adopts it by some sort of resolution....

JUSTICE SOUTER: So this case -- your claim would disappear if this town in Utah had passed an ordinance saying we adopt the Ten Commandments Monument?

MS. HARRIS: It would, Justice Souter. We would no longer have an equal access right going forward --

JUSTICE SOUTER: But that's -- I mean, if that's all that's involved here, we're engaging in kind of a -- almost a silly exercise in formality.

Now Summum's counsel tries to say it's not a mere formality. She suggests that much of the Mormon population might object to the display because it's not the Mormon version of the Ten Commandments.... But besides being arguably a formality, it's difficult to see where the "official resolution" requirement would be coming from in terms of precedent or principle....

Lund thinks Summum may lose 9-0.

If the city puts up a donated 10 Commandments monument, must it put up every other donated monument lest it violate Free Speech?

SCOTUSblog previews tomorrow's oral argument in Pleasant Grove City, et al., v. Summum.

Will the Justices’ vision be fogged by a cloud of potential horribles? The Solicitor General’s brief well illustrates this argument: “Under the decision below, a city’s display of a privately donated monument to Abraham Lincoln could entitle an individual to insist that the city permit the erection of a monument to Jefferson Davis, or a group could insist that the presence of the memorial in [Pleasant Grove’s] Pioneer Park commemorating the September 11 attacks entitles it to erect a memorial to the terrorists who carried them out.”

McCain continues his ad theme, making fun of the worship of Barack Obama.

McCain takes the risky approach of mocking our love for the other man:



Sorry, John, I found myself smiling through all those images — and it was always pretty easy to pick up the humor and the missing context of all the various things Obama was saying.

And as for that "10 Commandments" punchline... Althouse did it first. I feel like you owe me a link.

But the important question is: Will ads like this and "the biggest celebrity" one work? As I said on the radio show yesterday — listen to the first few minutes — it's risky to show ads like this, but I think they work because of the way that they acknowledge that a lot of us love and enjoy Barack Obama, but urge us to separate that love from the serious question whether he is ready to be President. That is how the ads work for me. Now, I do think the ads works differently for different people.

Those who already don't like Obama can have a laugh. Aren't the people who worship the man ridiculous? This is the way Rush Limbaugh took it:

I'll tell you, if the Obama people got mad and fed up over the Britney Spears celebutard ad, this is going to frost 'em. This is fabulous. This is Barack Obama's words right back at him. This is what Obama has said. And it's fun! It's having fun, yes, but it's his own words thrown right back at him.

Obama devotees can also enjoy a laugh: Our candidate is so fantastic that the only thing McCain can come up with is that he's just too fantastic. We can't promote him with lavish worship — isn't it hilarious that McCain is doing the worship mode for us?

But the key is how the ads affect independent, undecided voters. (Like me!) And I think they may be succeeding in encouraging us to separate our thinking about Obama into 2 parts:

1. He's really cool and great and this whole campaign is a lot of fun.

2. Being President is a deadly serious and immensely difficult and important business and we've got to pick the man who is better prepared to take it on.

McCain: "Brooke and Mark show me Drudge, obviously, everybody watches, for better or for worse, Drudge."

Incredible how important Drudge has become. That's from an interview by Adam Nagourney and Michael Cooper. (Here's the article on the interview, with audio clips in the sidebar.)

Q: What websites if any do you look at regularly?

Mr. McCain: Brooke and Mark show me Drudge, obviously, everybody watches, for better or for worse, Drudge. Sometimes I look at Politico. Sometimes RealPolitics, sometimes.

He must mean Real Clear Politics.

On blogs:

... I understand the impact of blogs on American politics today and political campaigns. I understand that. And I understand that something appears on one blog, can ricochet all around and get into the evening news, the front page of The New York Times. So, I do pay attention to the blogs. And I am not in any way unappreciative of the impact that they have on entire campaigns and world opinion.

Q: You read newspapers then.

That's almost wistful, isn't it? Newspapers get a mention and the NYT reporter pipes up with "You read newspapers then."

Mr. McCain: I read them most all every day.

Q: You and Obama are both newspaper and book readers. Do you read them in the old paper version or do you read them online?

"The old paper version" — it almost sounds as though the reporters themselves are letting go of the newspaper newspaper.

Mr. McCain: I love to read them in the print form, and the reason why I do is because so much, the prominence of the story matters. If I read a story and say, Oh my God, did you see this? But it’s back on A26, it doesn’t have the impact of what are still – even though it’s declining – what are still, what are hundreds of millions of American picking up an looking at today....

I'm picturing Richard Nixon taking comfort in the New York Times publishing the story of the Watergate break-in on — what was it? — page 19?

Anyway, these days, that story on A26 will be moved to the front by Drudge — which all you newspaper reporters are checking too — and, Drudge or no Drudge, blogger swill bloggers will see any story the newspapers try to downplay, and if it's good, we'll churn it up until the newspapers have to write a story about how all the bloggers are writing about it.

Are "hundreds of millions of Americans" are picking up the newspaper newspaper? The NYT circulation is around one million. USA Today and the Wall Street Journal each have about 2 million. How many Americans get a newspaper? I don't know, but "everybody watches... Drudge."

"Watches"... is that why we love the web? We watch it, like TV.

Watch Matt himself say what his standard the Drudge Report is: "To be completely live, almost as if you're animated, with text":



Hey, Drudge is a strange guy, isn't it? It's hardly surprising that he rarely goes on TV. Yet this oddball leads the way for us, which makes us all pretty strange, don't you think? It must drive Nagourney and Cooper mad.

IN THE COMMENTS: 1jpb writes: "Does [McCain] know that religious conservatives (and non-conservatives) will quickly notice, and object to, his use of the word God?" Good question. I know it's very common among many Americans to blurt out "oh my God" carelessly and for almost no reason at all, but there are also many of us who think it is quite wrong. I, personally, think it's worse than blurting out "fuck" and I don't understand why anyone who has any respect for the 10 Commandments doesn't agree with me. If you're not in a situation where you can spice up your loose talk with "fuck," please don't say "oh my God."

The 2007 posts-of-the-month.

January: C'mon, guys, wear leggings!

February: That polar-bears-on-the-melting-ice-cap photo.

March: I'm going to watch "An Inconvenient Truth."

April: Let's take a look at that 10 Commandments monument.

May. Caricature and handwritten notes from the 7th Circuit conference.

June: Why the judge cried about the pants.

July: Ingmar Bergman has died.

August: Just a few museum photos.

September: About Justice Kennedy's garish carpet and the way his desk is wedged in a corner.

October: Madison and New York/young and old.

November: A vlog about Thanksgiving squirrel, Mancow, guns, law school, commenters, and Madison versus New York.

December: I get pissed off at TNR.

Should -- can? -- the Senators make Judge Roberts critique old cases?

Lawprof Vik Amar thinks so.

Wasn't the failure to do precisely that the reason Senator Schumer voted against Roberts' appointment to the Court of Appeals? Here's what Schumer says:

I voted against him for one simple reason: And that is he really didn't answer the questions that I and others posed to him fully and some he just refused to answer.

I asked him, for instance, his views of a previous case, Morrison, which involved the great reinterpretation of the commerce clause and cutback on the Violence Against Women Act, and he said he wouldn't answer it.

I asked him, for instance to name three cases that he disagreed with, already settled cases in the Supreme Court; he wouldn't answer that. I asked him what cases he considered activist and he picked an 1899 case from the California State Supreme Court. This is not being fully candid with the committee in letting us explore somebody's views. He did answer some questions. But in too many he did not. And that's why I voted no.

Amar's proposal is limited to one of the things Schumer wanted and didn't get out of Roberts: the Senator names a case and challenges the nominee to analyze it. Unless the cases are identified in advance, it would be reckless to undertake a critique on the fly. But Roberts is quite likely, even then, to say that nothing can compare to the way you would study the questions in making a real decision. So I think it's a pipedream, but I did enjoy Amar's list of cases he'd like Roberts to have a go at:

GRUTTER v. BOLLINGER [the University of Michigan affirmative action case]

STENBERG v. CARHART [the "partial-birth abortion" case]

ATKINS v. VIRGINIA [banning the execution of the mentally retarded]

McCREARY COUNTY v. A.C.L.U [finding that a particular courthouse display of the 10 Commandments violated the Establishment Clause]

SEMINOLE TRIBE v. FLORIDA [finding Congress lacks the power under the Commerce Clause to abrogate state sovereign immunity]

Those bracketed descriptions are mine, by the way. Legal types might enjoy comparing my little descriptions to Amar's -- particularly the one for Seminole.

Oh, it would be an "intellectual feast" indeed if the Senators could get Roberts to do this. But can you imagine how they'd twist his answers and bounce political arguments off them? They'd appeal to the home audience, who could in no way follow the legal difficulties of these issues. The foolhardiness of playing into that would be so great that we ought to question Roberts' judgement if he does. But, you say, he's a smart guy. He's a brilliant litigator. He could do it. That's what Bork thought when he answered questions like that.

Please, go here, begin reading at the star and read a page and a half -- a brilliant description of Joe Biden triumphing over Robert Bork. Isn't Chuck Schumer itching all over for a moment like that?

Anything happening?

Sorry, I've been away from my computer.

I guess I need to jump back in this. Bush is announcing the new nominee tonight. Apparently, her name is Edith. We're just not sure what her last name is...

I did a lunch talk today at the law school about the recent 10 Commandments cases. It was fun revisiting them knowing a new Justice will be coming on the Court and might possibly tip the Establishment Clause analysis one way or the other after so many years of mystic balancing within the mind of Sandra Day O'Connor. I'm picturing a vortex in the center of the Court that will always drag another one in no matter who is removed. Breyer has already offered his services as the mystic mind balancing the Multitudinous Factors of the Complex Context.

After the "lunch talk" at which I didn't eat, I talked, I went out to lunch and ate Insalata Caprese and chatted about any number of things, before coming home to find that the Supreme Court nomination is more up in the air than I'd thought.

Exciting times.

UPDATE: Of course, now everyone's saying it's Roberts. And his first name isn't Edith. It's John. Looks like a very solid pick.

What would Jesus wear on his T-shirt?

With hundreds of students at the Homewood-Flossmoor high school planning to wear T-shirts that say "gay? fine by me" on a "gay awareness" day, some Christian students have decided to argue with the message with T-shirts of their own:

[T]he T-shirt campaign, which made a quiet debut last year, is meeting opposition from some of the school's Christian students. In what will amount to a schoolyard battle of messages, a couple hundred other students are expected to wear shirts citing "crimes against God," namely "discrimination against ... my 10 Commandments, my prayers, my values, my faith, my God."...

Jacques Jacobs, a youth minister at Family Harvest Church, said his church is "not fighting anybody, we are only standing up for the rights of the Christian student."...

David Thieman, a Homewood-Flossmoor school spokesman, said both contingents could wear the shirts as long as they comply with the student code of conduct, which forbids the promotion of violence or drugs.

UPDATE: And to answer my own question -- what message would Jesus wear on a T-shirt -- I'm going to go with: "Love one another." Do you have a better idea?