For those interested in how the American legal system mediates public displays of religion, Christmas is coming early this year.

The holiday season is always a fun time for those interested in the intersection of religion and law.  2013 is shaping up to be no different. In Oklahoma, a group of Satanists are attempting to place a Satanic monument and “interactive display” (!) on the Capitol lawn. The Satanists were followed shortly by a group of Hindus, who announced their intention to build a monument to Hanuman on the Capitol steps.

Why is this happening now? Well, legislation regarding the American public square is something of a mess. The incoherence of much First Amendment jurisprudence calls to mind this scene from Blues Brothers (1980):

As to why this is happening in Oklahoma specifically, in 2009 the Oklahoma legislature passed a bill allowing for the installation of a Ten Commandments monument not too far from the Capitol steps. There are issues of equal access, to be sure, but more interesting than the usual First Amendment kerfuffle was the following response (as reported in the Huffington Post article, linked above) by the Oklahoman in charge of moderating these public religious displays:

Trait Thompson, chairman of the Oklahoma Capitol Preservation Commission, which approves all monuments, declined to comment, saying only that a good-faith application would be voted on by the commission.

Now, what exactly is a “good-faith application”?  Only time will tell. I suspect, though, that before this is all said and done that particular question will be answered in a courtroom. In the meantime, Oklahoma will have to entertain appeals from other religious groups. Of course, this brings up an interesting question: what, exactly, counts as a “religious group”?

Cut to the Florida State Capitol building.  Earlier this week, a Festivus pole was installed in the Capitol rotunda that consisted of a single aluminum pole covered in PBR cans.

The Festivus Pole in the Florida Capitol

The Festivus Pole in the Florida Capitol

If you’re not familiar with Festivus, it’s a holiday introduced in the Seinfeld television series billed as a “festivus for the rest of us.” The holiday, celebrated on December 23rd, has become popular with atheist groups for its lack of traditional religious significance.  The Seinfeld-ian memorial will join another holiday piece already on display in the Florida Capitol building which consists of Three Wise Men–Jefferson, Madison, and Franklin–adoring a copy of the Bill of Rights (which is, in turn, nestled in a manger). This latter project is the work of the Freedom From Religion Foundation,  a nonprofit group dedicated to lobbying for their particular vision of church-state separation.

What interests me about these displays is how groups choose to represent themselves as strategically (a)religious in order to compete for access to public space. This shouldn’t be surprising, since gated access to powerful public platforms is nothing new. Yet what is curious about this situation is how the actions of groups like FFRF fit into a narrative  of secularism or “secular humanism” becoming recognized as a distinct religious entity itself. This narrative is evident in much legal discourse today, and came to national attention in the Alabama case Smith v. Board of School Commissioners of Mobile County (1987). In that case, Judge W. Brevard Hand ordered that certain textbooks couldn’t be used in Alabama classrooms, since they breached the Establishment Clause of the First Amendment by establishing religion–that is, the religion of Secular Humanism. 

The actions of FFRF in Florida, and in many locations around the country, suggest that the category “religion” has become so naturalized, so unmistakably self-evident and universal, that the self-expressed absence of the category is itself evidence for its presence.

All of this takes us back to the steps of the Oklahoma Capitol building. How do you police proper religious representation, much less determine a “good-faith application” from religious groups, when the rules of the game increasingly dictate that religion is inescapably present in any public act?