Thoughts in a Haystack

Concerning the continuing contretemps in the Capitol of Washington State, Ed Brayton has pointed out that the Governor has no choice but to allow access to the atheist group due to a settlement the state made last year in a suit brought by the conservative Christian Alliance Defense Fund. Here is how the ADF described the settlement:

“In fact, the state capitol rotunda is open for displays and exhibits during the holiday season. The state cannot bar a Christmas nativity because of its religious viewpoint and allow other displays like a menorah and ‘holiday tree,’” [ADF Senior Legal Counsel Byron] Babione added.

Those interested can find a pdf copy of the settlement here. Notably, the settlement includes an amended “Department of General Administration, Policies, Procedures & Task Outlines, Capitol Campus Facilities” that the state is required to adopt, that determines the "coordinated, nondisruptive use of capitol facilities by the public and by commercial organizations."

The "Background" section of the policy, setting forth the general requirements that must be met, states:

The buildings and grounds of Washington's capitol campus are maintained by its citizens for the purpose of conducting the business of state government. Public participation and involvement by citizens is encouraged. Therefore, where and when access is allowed, state government must provide for non-discriminatory access to and use of capitol facilities by all citizens.

The restrictions that can be placed on citizen use are:

~ First priority goes to government use and, after that, any use that does not disrupt government use of the facilities is scheduled on a "first come, first served" basis.

~ The size and time schedule of the proposed activity must be consistent with the intent and decorum of the seat of state government and the appropriate, non-disruptive use of public facilities. For example, weddings may not be conducted in the capitol when the legislature is in
session.

~ Consumption of alcoholic beverages in the public areas of the capitol campus buildings or grounds is prohibited, with the exception of official affairs of state.

~ No activity may be authorized or permitted if there is potential for conflict with a previously scheduled activity, or conduct of the activity may lead to damage or injury to persons or property.

~ The activity must not violate any federal, state or local constitutional requirements, statutes or ordinances.

~ The activity must not 1) disrupt orderly flow of pedestrian and vehicular traffic; 2) interfere with the conduct of state business on the capitol grounds; or 3) block access to state buildings.

Now, let's see ... the atheist group's sign itself is not disrupting state government business, interrupting the flow of pedestrian traffic, blocking access to the capitol, or the like ... any more than the crèche is, at least.

There's no drunken wedding dances involved.

As much as conservative Christians might wish differently, advocating atheism does not violate any federal, state or local constitutional requirements, statutes or ordinances.

I suppose you could argue that the "conduct of the activity may lead to damage or injury to persons or property," since the atheist sign was already stolen. But the only reasonable interpretation of that provision is that the activity itself, not the illegal acts of others in response to the activity based on their own motives, must pose a danger of injury. Words on a sign are not, except perhaps in the most extraordinary circumstances, physically dangerous.

Now, does advocating atheism "conflict with a previously scheduled activity" of having a crèche, menorah and holiday tree in the rotunda? That is the closest possible excuse that could be used to deny permission for the atheist sign or to move it to another part of the capitol. But it would be a poor basis for the state to defend a complaint of viewpoint discrimination on.

Obviously, there is no physical conflict that makes the concurrent displays difficult or dangerous. The only conflict is an emotional one, in that Christians don't like their beliefs criticized, particularly at this time of year or in connection with the quaint tale of the little baby Jesus. But as was made clear in the case of the Nazi march through Skokie, Illinois, the hurt feelings of those hearing or seeing the exercise of other people's free speech is not grounds to deny that speech. Certainly, it would be a clear violation of the Free Speech, Establishment and Freedom of Religion clauses of the First Amendment for the state to try to put atheists, or any other group with disfavored beliefs, into a free speech ghetto, tucked away from the favored religious symbols.

It was conservative Christians who wanted the capitol rotunda opened up for displays by the public. It's high time they get used to living with what they asked for.
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That thing up on the right is a petard, by the way.
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