Vol. 15 No.8 (August 2005), pp.718-721


THE BIBLE IN THE PARK: FEDERAL DISTRICT COURTS, RELIGIOUS SPEECH, AND THE PUBLIC FORUM, by John Blakeman.  Akron: University of Akron Press, 2005.  300pp.  Cloth. $39.95.  ISBN: 1-931968-13-6.


Reviewed by Steven B. Lichtman, Department of Political Science, University of Vermont.  Email: steven.lichtman@uvm.edu .


John Blakeman’s new book, THE BIBLE IN THE PARK, is nothing if not timely.  In the two years leading up to its release, American courts prominently grappled with the question of whether representations of the Ten Commandments may be displayed in a variety of public settings.  In arguably the most famous case, Roy Moore, Chief Justice of the Alabama Supreme Court, was ordered by a federal court to remove a 5,000-pound Ten Commandments monument he had arranged to be installed in his courthouse rotunda; Moore’s refusal to obey the court order eventually led to his removal on ethics charges in November of 2003.  Then in June of 2005, the United States Supreme Court issued two seemingly contradictory rulings, declaring in McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY that two Kentucky counties had to remove Ten Commandments displays from their courthouses, but also declaring, in VAN ORDEN v. PERRY, that the state of Texas could keep a Ten Commandments display among the nearly 40 monuments arrayed on the grounds of the state capitol.


Each of these cases raised important issues about the role of religion in public life and the constitutional status of religious speech. While not unmindful of the “political” overtones of the currently-revived debate, Blakeman has set out to examine the subject from a different angle.  The core questions he asks in THE BIBLE IN THE PARK are practical rather than doctrinal – covering federal district courts’ adjudication of religion-in-public lawsuits, and public policy implications of trial court actions in these kinds of cases.  What makes THE BIBLE IN THE PARK so intriguing is that Blakeman thus takes a subject that is traditionally (and almost exclusively) understood within a narrow Supreme Court context, and instead presents it from the “bottom up.”


In structuring his project along this somewhat contrarian line, it is absolutely essential that Blakeman establish why district courts’ handling of religious speech cases is a worthwhile avenue of study.  Blakeman is firmly in the camp of the exciting emerging scholarship on trial courts, in his insistence that the trial court phase is just as fertile a source of insight about judicial policymaking as the appellate stage.  However, in selecting this particular subject matter, Blakeman confronts obstacles that other scholars of trial courts do not.


Unlike broad desegregation lawsuits or class action torts, which require differing levels of judicial management at the trial level, the cases Blakeman chooses to scrutinize are not terribly complicated proceedings.  Furthermore, there are [*719] rarely factual disputes in public religious speech lawsuits; resolution invariably involves constitutional interpretation and not evidentiary determination.  Consequently, it seems to be a matter of logic (and not merely a case of scholarly myopia) that the “important” phase for public religious speech cases is going to be at the appellate level, rather than the trial level.  Put another way, it is difficult to imagine that some judge and court could be to Blakeman what Judge Jack Weinstein of New York’s Eastern District was to Peter Schuck (1987).


Laudably, Blakeman overcomes the structural hurdles native to his project and produces a sophisticated work with across-the-board appeal.  Readers interested in the general significance of trial courts and litigation of the public policy will derive as much satisfaction from this book as will readers seeking additional insight on the rise to political prominence of evangelical Christians, who are advancing their agenda via litigation and electoral strategies alike.


Ironically, to make his arguments promoting the policymaking capability of lower courts, Blakeman is compelled to begin the book with a chapter devoted to Supreme Court jurisprudence.  Because THE BIBLE IN THE PARK is more of a pragmatic exploration of the nature of a public forum than a philosophical meditation on freedom of religion, Blakeman must set up this exploration by laying out the ground rules lower courts must apply to public forums, ground rules that were established by the Supreme Court.  Unfortunately, this chapter, tracking the development of the Supreme Court’s public forum jurisprudence, reads fitfully.  Since a subtext of Blakeman’s project is an attempt to wean scholarship away from a Supreme Court obsession, it is understandable that this chapter is the book’s weakest moment.


Once Blakeman has dispensed with this scene-setting chore, however, THE BIBLE IN THE PARK morphs into a lively accounting of the multifaceted impact lower courts have on public forum policy.  Blakeman parses the federal case data regarding religious speech in public forums in multiple ways: identity of the litigants (asking both whether the plaintiff is an individual or a group, and also whether the government defendant is federal, state, or local), sectarian affiliation of the religious speaker, purpose of the religious speech (e.g., prayer, solicitation of donations, evangelism), and the type of forum the speakers seek to access (e.g., park, airport, government building).  What emerges is a richly detailed picture of the litigation trends.  Perhaps unsurprisingly, Blakeman finds that the overwhelming majority of religious speech claims are brought by Christians, leading him to conclude that “arguably, the law on religious speech and public forums is developing in the context of one specific faith-based message” (p.127).


The implications of this particular finding are comprehensively explored when Blakeman expands his analysis of the type of forum utilized by religious speakers, because it is at this point that lower courts step into the process as central political actors.  He reports that judicial policymaking on public religious speech predominantly occurs via the district court’s determination of the nature of the purportedly public forum. [*720] In one of his most interesting findings, Blakeman argues that even as it is difficult to locate public forum distinctions on a traditional liberal-conservative continuum, “partisan differences” do creep into the resolution of public religious speech cases (p.163).  This is most clearly evident in Republican judges’ comparative unwillingness to declare public schools to be open to speech and expression (Republican judges do so in 66.7% of the cases, as opposed to 78.9% of such cases decided by Democrats, a statistically significant difference), even though almost all the schools are considered as designated public forums.


On the one hand, this finding supports a conventional understanding that Republican judges prefer to allow local school boards to regulate the educational process, instead of ordering them to submit to external authority.  On the other hand, Blakeman’s data indicate that Democrats are more amenable to forcing schools to be open to this kind of expression, which leads to a surprising inference: “Democrats are implicitly suggesting that religious speech in public schools is perhaps allowable.  Or, Democrats are at least lowering one threshold to protecting religious speech in public schools” (p.164)


One topic that is curiously absent from THE BIBLE IN THE PARK is the phenomenon of governmental religious speech in the public forum.  Two of the case examples mentioned at the beginning of this review referenced Ten Commandments monuments installed by government officials.  Given that Blakeman characterizes the question “Who litigates” as “fundamental” to analyzing district court policies towards religious speech (p.71), it would have added to the project’s explanatory value had he included of a study of cases in which litigants challenge religious speech that is either made by government or sponsored by government.  He includes government religious speakers in his data – noting that government religious speech is responsible for only 2% of the cases (p.77) – but he does not devote any significant time to analyzing specific cases.  Indeed, Ten Commandments monuments receive only a brief tangential mention late in the book.  By contrast, the litigation strategies of the International Society for Krishna Consciousness (ISKCON), an early repeat player in these cases that has since faded from the field, garners several pages of discussion in several chapters.


Admittedly, a focus on government religious speakers would be an awkward fit within Blakeman’s main project, which is to understand how the entrepreneurially litigious behavior of religious speakers affects district court policymaking.  Nevertheless, with their absence, the reader is left with a slight twinge of incompleteness.


Notwithstanding this one criticism, THE BIBLE IN THE PARK is a worthy addition to the literature on judicial policymaking, a highly readable volume appropriate for scholars and students alike.  Blakeman has crafted an insightful and intellectually creative book that will provide readers with some genuine surprises.



Schuck, Peter H., 1987.  AGENT ORANGE ON TRIAL.  [*721] Cambridge, MA: Belknap Press of Harvard University Press.





VAN ORDEN v. PERRY, 125 S.Ct. 2854 (2005).


© Copyright 2005 by the author, Steven B. Lichtman.