WASHINGTON (ABP) — In a groundbreaking, but limited, free-speech case handed down Feb. 25, the Supreme Court said the city of Pleasant Grove, Utah, can’t be forced to accept the gift of a monument to a small religious sect’s precepts — even though the town already displays a donated monument to the Ten Commandments in its city-owned Pioneer Park.
But, in Pleasant Grove City v. Summum (No. 07-665) the opinion of a unanimous court also made clear the decision turned on whether the Decalogue monument was government speech or private speech — not on the religious content of the speech itself. That means the existing monument could still be open to a challenge under the First Amendment’s Establishment Clause, which bans government endorsement of religion.
 An artist’s rendering of the Ten Commandments monument (left) and the proposed Summum “Seven Aphorisms” monument (right). (ILLUSTRATION/Summum) |
“The parties’ fundamental disagreement thus centers on the nature of petitioners’ conduct when they permitted privately donated monuments to be erected in Pioneer Park. Were [city officials] engaging in their own expressive conduct? Or were they providing a forum for private speech?” wrote Justice Samuel Alito, who authored the court’s opinion.
The decision overturns an earlier one by the 10th U.S. Circuit Court of Appeals. A panel of the lower court had said the sect, called Summum, has as much right to erect a monument in the park as the Fraternal Order of Eagles did in the 1960s, when it donated the Ten Commandments monument.
Leaders of the sect, based in nearby Salt Lake City, asked Pleasant Grove officials in 2003 to display the monument to the “Seven Aphorisms of Summum,” which the 33-year-old group says were also handed to Moses on Mount Sinai along with the Decalogue.
The Aphorisms include such sayings as, “Everything flows out and in; everything has its season; all things rise and fall; the pendulum swing expresses itself in everything; the measure of the swing to the right is the measure of the swing to the left; rhythm compensates.”
The courts have long established that government entities providing public forums for private speech — such as speakers’ corners in city parks — cannot discriminate in what sorts of speech are allowed. But Alito said the Ten Commandments monument and other privately donated displays in the park have effectively become government speech, and therefore the city can refuse to endorse some messages.
“The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech,” Alito wrote. “There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation. Permanent monuments displayed on public property typically represent government speech.”
Several justices wrote separate concurrences limiting the effect of Alito’s opinion.
Justice David Souter, who concurred only in the judgment overall and not in Alito’s reasoning, noted that the case is one of the first in which the relatively new government-speech doctrine has been illuminated regarding public monuments. But, he envisioned situations in which the doctrine may come into conflict with existing court precedent on the Establishment Clause.
“After today’s decision, whenever a government maintains a monument it will presumably be understood to be engaging in government speech,” Souter wrote. “If the monument has some religious character, the specter of violating the Establishment Clause will behoove it to take care to avoid the appearance of a flat-out establishment of religion…. In such an instance, there will be safety in numbers, and it will be in the interest of a careful government to accept other monuments to stand nearby, to dilute the appearance of adopting whatever particular religious position the single example alone might stand for. As mementoes and testimonials pile up, however, the chatter may well make it less intuitively obvious that the government is speaking in its own right simply by maintaining the monuments.”
Some supporters of church-state separation, including the Baptist Joint Committee for Religious Liberty, had filed a friend-of-the-court brief urging the justices to take up the church-state issues the case raised.
“Because of the peculiarities of Tenth Circuit jurisprudence, Summum couched its legal claims principally in the language of free speech and viewpoint discrimination,” the brief said. “The proper locus of its complaint is, however, the Establishment Clause — which the Founders intended to serve as the principal bulwark against the government’s resort to rank denominational prejudice.”
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Robert Marus is managing editor and Washington bureau chief for Associated Baptist Press.
Related ABP articles:
Supreme Court to hear case pitting 10 Commandments vs. ‘7 Aphorisms’ (4/1/2008)