The Supreme Court And Summum: When Freedom Of Speech And Church-State Separation Collide

[caption id="" align="alignright" width="251" caption="Summum's temple is a Pyramid in Salt Lake City. (image from the Wikimedia Commons)"][/caption]

Today several Americans United staff members and I walked three blocks from our office to the U.S. Supreme Court to listen to oral arguments in the Ten Commandments case, Pleasant Grove City v. Summum. Americans United has filed a friend-of-the-court brief in support of neither the city nor the Summum religion, but rather to protect the separation of church and state.

The case is very complicated, with First Amendment free speech concerns intersecting with church-state law.

Religious Right attorney Jay Sekulow represented a Utah town that allowed a fraternal group to erect a Commandments monument in a public park in the early 1970s. The Summum religion wanted to display a permanent monument of its own teachings, called the Seven Aphorisms, but was denied access.

Unlike other Commandments cases argued in recent times, Summum did not assert its right to display the monument on church-state grounds. In fact, neither party even raised a federal Establishment Clause claim. Instead, the legal argument was framed under the free speech doctrine, and today Sekulow and Summum attorney Pamela Harris simply argued over whether the Commandments monument was private speech or government speech.

Americans United staff members have been urging the news media to focus on the vital church-state implications of the case. After listening to the oral arguments today, AU Executive Director Barry W. Lynn spoke with reporters outside the high court and later was interviewed by AP Radio. The New York Times mentioned our stance in its editorial on the topic yesterday.

In addition, AU Legal Director Ayesha N. Khan was quoted on NPR's "Morning Edition" and in The Christian Science Monitor.

Khan also explained on the American Constitution Society's blog AU's views about this strange case. Give it a read, and you'll understand better the issues at stake.

Utah Case Presents High Court With First Amendment Issue, Just Not The One That Should Be Considered

by Ayesha N. Khan, legal director of Americans United for Separation of Church and State

On Wednesday, Nov. 12, the Supreme Court will hear oral arguments in Pleasant Grove City v. Summum.   The Court stands poised to issue a decision that could have major ramifications for freedom of speech cases — and that could have unforeseen and unintended consequences on Establishment Clause jurisprudence.

Pleasant Grove City is a small city in Utah.   The city owns and manages Pioneer Park, which contains a variety of monuments, plaques, and other permanent displays, such as a large granite Ten Commandments monument that memorialize objects or events of historical or cultural significance.   Many of the monuments were donated to Pleasant Grove by private parties, but all are now owned by the city.

Summum is a religious organization whose beliefs are encapsulated in the "Seven Aphorisms," a set of higher-order principles that the followers of Summum believe to have been entrusted to Moses before the Ten Commandments. The church has been quite active in attempting to place Seven Aphorisms monuments alongside Ten Commandments displays in public areas.   And that is precisely what Summum attempted to do in Pleasant Grove.

In 1971, the Fraternal Order of Eagles donated to Pleasant Grove a Ten Commandments monument that has stood in Pioneer Park ever since.   In 2003 and again in 2005, Summum attempted to donate its Seven Aphorisms monument to the city; the group's only request was that its monument stand near the Ten Commandments one.   The city denied both requests, claiming the Summum display did not relate to the history of Pleasant Grove and that Summum was not an organization with strong civic ties to the city.

Summum then sued the city, losing at the district-court level, but winning before the Tenth U.S. Circuit Court of Appeals.   The arguments before the Tenth Circuit revolved around issues of freedom of speech and whether or not Pioneer Park is a "public forum" — government property either traditionally or explicitly designated as a place for private individuals to exercise their right to freedom of speech.     The Tenth Circuit held that a public park is a traditional public forum, and that the privately donated displays in the park were private, not governmental speech — so the City could not exclude offered items on the basis of their content or viewpoint.

Summum contends before the Supreme Court that the Tenth Circuit got it right: monuments donated by private parties remain the speech of the donor unless they are affirmatively and proactively adopted by the city, something that has not happened here.   Thus, Pleasant Grove has made Pioneer Park a public forum by allowing private parties to "speak" in the park by erecting monuments.   Accordingly, Pleasant Grove cannot exclude Summum's display.

Pleasant Grove argues that monuments donated by private parties to the government become the speech of the government.   That means that no public forum was created, because all of the monuments on display are the speech of the government — no private parties have been allowed to "speak."   It also means that Pleasant Grove would be free to deny access to groups like Summum on the theory that private groups cannot force the government to adopt private speech as the government's own.

These are the issues that the Supreme Court will decide . . . and they totally miss the point.

So what is the point?   Americans United for Separation of Church and State, along with the American Jewish Committee, the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and People for the American Way Foundation have filed an amicus curiae brief in support of neither party, arguing that this is a case more properly analyzed under the Establishment Clause, not the Free Speech Clause.

In fact, the only reason that this case is not a straightforward Establishment Clause lawsuit has to do with a Tenth Circuit case that should have been overruled decades ago.   In 1973 the Tenth Circuit ruled in Anderson v. Salt Lake City that the Ten Commandments are primarily secular and that their display could never give rise to an establishment of religion.   The Supreme Court itself obliterated that premise in 1980, when it stated in Stone v. Graham that "[t]he Ten Commandments are undeniably a sacred text in the Christian and Jewish faiths, and . . . do not confine themselves to arguably secular matters" and struck down a Kentucky statute requiring the display of the Commandments in public schools.

Summum, no stranger to litigation over placement of the Seven Aphorisms, had raised the Establishment Clause issue alongside its freedom of speech claims in two prior cases that reached the Tenth Circuit.   In both instances, Summum v. Callaghan and Summum v. City of Ogden, the Tenth Circuit felt constrained by the earlier ruling in Anderson but also felt that Summum deserved to prevail.   So the panels accomplished through the Free Speech Clause what should have been addressed under the Establishment Clause.   In this case, having won twice on freedom of speech, Summum decided that it would bring only the Free Speech issue against Pleasant Grove, and ignore the Establishment Clause.

And so here we are: bad precedent in the Tenth Circuit giving rise to potentially bad precedent in the Supreme Court.   If Summum wins, then governments would likely face demands to erect permanent monuments of a proselytizing and even hateful nature in public parks throughout the country.   If Pleasant Grove prevails, some governmental entities may be inclined to use the donation model as a device to allow them to pick and choose which religious messages they would like to promote.

We would have much preferred to see the case litigated as a straight-up Establishment Clause challenge.   There are two potential Establishment Clause claims here: one would allege that the display of the FOE's Ten Commandments monument reflects an endorsement of religion; the other would allege that the exclusion of Summum's monument was caused by impermissible religious hostility.   The former claim may present an uphill battle, in light of the 2005 ruling in Van Orden v. Perry, where the Supreme Court upheld a FOE Ten Commandments monument displayed on the State Capitol grounds along with a variety of other items expressing Texas's ideals.   But the latter claim bears a chance of success, particularly because the facts hint at religious animus having motivated the City's denial of Summum's request.

Summum is of course free to amend its complaint to add a federal Establishment Claim if its free-speech claim is rejected by the High Court.   In the meantime, however, the Supreme Court must wend its way through this quagmire.