Arkansas Rejects Request for Hindu Statue at Capitol - The New York Times

The outcome of what began earlier this year,

Arkansas Gov. Asa Hutchinson has signed into law a bill instructing the state to erect a privately funded Ten Commandments monument on the State Capitol grounds in Little Rock.

Reports the Arkansas Democrat-Gazette:

Senate Bill 939 was introduced by Sen. Jason Rapert, R-Bigelow, on March 9 and zipped through the Republican-dominated Legislature in about three weeks. The Senate voted 27-3 to approve it on March 25 and the House voted 72-7 to send it to the governor on April 1.

The measure requires the secretary of state to permit and arrange for the monument to be designed, constructed and paid for by private entities at no expense to the state. Similar monuments have been constructed in Oklahoma and Texas.

should be of no surprise.

The Arkansas secretary of state’s office has denied a request from the Universal Society of Hinduism to place a privately funded Hindu statue on Capitol grounds.

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A rejection letter, dated Aug. 17, told the group to either apply through the General Assembly for permission or to submit an application to the Arkansas State Capitol Arts and Grounds Commission, which has jurisdiction over such requests. Kelly Boyd, the chief deputy secretary of state, wrote in the letter that the office was involved in the process for the Ten Commandments statue only because the legislature had mandated its placement on the property.

As Gershman notes, the Arkansas legislature and Governor knew they were on shaky legal grounds, but proceeded anyway.  

The legislation authorizes the state attorney general to “prepare or present a legal defense of the monument” should the legality or constitutionality of the monument be challenged in court. The attorney general, the bill says, may also ask a conservative legal foundation, the Liberty Institute, to defend the monument in court.
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The high court in 2005 issued a split verdict on the matter with a pair of decisions, holding that public displays of the commandments are not inherently unconstitutional but can be if they include content viewed as endorsing religion.

In one ruling that year, [Van Orden v. Perry, 2005] the court held that a decades-old, privately donated monument could remain on the grounds of the Texas State Capitol. In another, [MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY, 2005] it concluded that framed displays in two Kentucky courthouses violated the First Amendment because officials put them there for religious reasons.

And as Noah Feldman points out in his piece, The Legality Of Arkansas Rejecting Hanuman Statue, the apparent contradiction in the Van Orden and McCreary rulings is what Arkansas is relying on.

Here’s where things really get messy. In a pair of cases decided the same day in 2005, the Supreme Court upheld the constitutionality of a Ten Commandments monument on the grounds of the Texas state capitol and struck down two displays inside courthouses in Kentucky that also featured the Decalogue. The swing vote in both cases was Justice Stephen Breyer, who in a cryptic opinion seemed to say that the Texas monument was old and big and the Kentucky displays were new and easily removable.

Arkansas legislators are probably hoping that their new Ten Commandments monument will be upheld because Texas’s old one was. Their lawyers will argue in court that the monument doesn’t endorse religion, just acknowledges the place of Judeo-Christian tradition in Arkansas and U.S. history. Or they might say that most Arkansans consider the Ten Commandments central to their lives.

Rejecting the Hanuman statue makes their case harder. It’s pretty clear that the Arkansas Legislature wants to endorse Christianity and doesn’t want to endorse Hinduism.

Conversely, if the Hanuman statue had been accepted, the courts would have been more likely to uphold the Ten Commandments monument. Then it would appear that Arkansas was aiming to allow a diverse range of cultural and religious traditions to be represented on the state capitol’s grounds.

The upshot is that, if religious people want to express their values symbolically under the current legal regime, they probably need to embrace religious diversity. If they don’t like that option, they can choose to keep their religion private.

Arkansas Rejects Request for Hindu Statue at Capitol - The New York Times