Coming soon to the Oklahoma state capitol: Could it be ... Satan?

The group responsible for this is, apparently, sincerely Satanist, but the design is so ridiculous — “people of all ages may sit on the lap of Satan” — that it’s hard to believe it’s not just some unusually epic atheist trolling. Adding two kids to the design, admiring the Dark Lord on either side, was an especially nice touch. If they’re going to troll the entire state, they might as well have gone the whole nine yards and made it a statute of Cthulhu. Every nerd on the Internet would have been behind them then.

Which reminds me: Every state capitol should have a statue of Cthulhu.

The Satanic Temple maintains that the Oklahoma Legislature’s decision to authorize a privately funded Ten Commandments monument at the Capitol opened the door for its statue. The Ten Commandments monument was placed on the north steps of the building in 2012, and the Oklahoma chapter of the American Civil Liberties Union has sued to have it removed.

Similar requests for monuments have been made by a Hindu leader in Nevada, an animal rights group and the satirical Church of the Flying Spaghetti Monster.

In response, the Oklahoma Capitol Preservation Commission recently placed a moratorium on considering any new requests…

“I think you’ve got to remember where you are. This is Oklahoma, the middle of the heartland,” said Rep. Don Armes, R-Faxon. “I think we need to be tolerant of people who think different than us, but this is Oklahoma, and that’s not going to fly here.”

And so America waits and wonders: Will Oklahoma greenlight a monument that’s bound to attract every atheist, Goth, metalhead, and wise-ass within hundreds of miles for the requisite smartphone selfies? Does Oklahoma even have a choice? They put up a Ten Commandments monument, after all. In theory, for Establishment Clause reasons, that means they’re stuck having to allow other faith displays too.

Or … does it? The Supreme Court opinion to read here (it’s a short one, mercifully) is Pleasant Grove City v. Summum from 2009. In that case too, a private group had donated a monument of the Ten Commandments to the state for placement in a public park. Another religious group asked the city to display a monument to its faith in the same park; when the city refused, they sued. SCOTUS held (unanimously!) that the state is allowed to be selective in its choice of monuments. It can’t deny you your right to free speech in the park, but permanent displays like monuments are different from speech. What’s at stake here, wrote Justice Alito, is “government speech”:

Public parks are often closely identified in the public mind with the government unit that owns the land. City parks—ranging from those in small towns, like Pioneer Park in Pleasant Grove City, to those in major metropolises, like Central Park in New York City—commonly play an important role in defining the identity that a city projects to its own residents and to the outside world. Accordingly, cities and other jurisdictions take some care in accepting donated monuments. Government decisionmakers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture. The monuments that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech…

If government entities must maintain viewpoint neutrality in their selection of donated monuments, they must either “brace themselves for an influx of clutter” or face the pressure to remove longstanding and cherished monuments. See 499 F. 3d, at 1175 (McConnell, J., dissenting from denial of rehearing en banc). Every jurisdiction that has accepted a donated war memorial may be asked to provide equal treatment for a donated monument questioning the cause for which the veterans fought. New York City, having accepted a donated statue of one heroic dog (Balto, the sled dog who brought medicine to Nome, Alaska, during a diphtheria epidemic)7 may be pressed to accept monuments for other dogs who are claimed to be equally worthy of commemoration. The obvious truth of the matter is that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations.

Monuments say something about the identity of the city or state that displays them, so naturally the city or state, through its representatives, gets to choose which ones to display. Pretty straightforward — except what if a state put up a monument that read “Christianity is the one true faith”? That would, no doubt, accurately reflect the view of most of its residents, but it’s hard to believe the Court would let it fly on Establishment Clause grounds. Alito says virtually nothing in his opinion about that. It falls to Scalia, in his concurrence, to argue that the Establishment Clause poses no problem either because the Court’s already ruled that the Ten Commandments has permissible secular historical and moral meanings in addition to its religious ones. It’s true, the Court did rule that in an earlier case — although without securing a five-vote majority for the holding. It was Breyer who joined with four conservative justices in that one, but he made clear that it was a close call that depended in part on the particular facts of how, and how long, a particular Ten Commandments monument was displayed. Would he come to the same conclusion in a case like Oklahoma’s? When the alternative is to force state capitols to host giant statues of demons with goat heads? I’m thinking … yeah, probably. And even if he didn’t, the remedy would be to force the state to take down its Ten Commandment monument, not to let the Satanists put up theirs. Which, I take it, is what the Satanists are aiming for in the first place.