April 2009 Church & State | Featured

Founded by Mormons as a frontier farming community in 1850, the city of Pleasant Grove, Utah, makes the most of its colorful past.

If you visit Pioneer Park in the heart of this town of 23,000 nestled in the shadow of Mount Timpanogos north of Provo, you will see an old schoolhouse, a historic firehouse, a granary, a log cabin and a corral. The structures are reminders of the way life used to be more than 140 years ago.

You will also see something that might be a little unexpected: a stone marker listing the Ten Commandments. The monument has no tie to the city’s frontier past and was donated to town fathers by the Fraternal Order of Eagles in 1971.

The monument became the focus of a legal battle culminating in a Supreme Court ruling last month. Thanks to some unusual circumstances, this was no routine battle over a religious symbol on public property, and the high court’s unanimous decision allowing the marker to stay may not be the last word on the matter.

Traditionally, legal disputes over religious symbols on public property are adjudicated under the First Amendment’s Establishment Clause, which forbids government from taking any action “respecting an establishment of religion.”

This case, however, played out as a battle over free speech. A small religious group called Summum, seeing the Commandments monument on government-owned land, decided it wanted equal time. Twice in 2003, Summum wrote to officials in Pleasant Grove and asked them to display the “Seven Aphorisms” of Summum, a set of principles that explain Summum’s core beliefs. (See “Monumental Battle” and “Seven Aphorisms, Nectar and Mummification,” September 2008 Church & State.)

When city officials balked, Summum sued. The group scored a victory when the 10th U.S. Circuit Court of Appeals ruled in its favor in 2007. But that win turned out to be fleeting. On Feb. 25, the Supreme Court unanimously reversed.

The high court held that it would be impractical to require communities to accept and permanently display every monument they are given.

“A public park, over the years, can provide a soapbox for a very large number of orators – often, for all who want to speak – but it is hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression,” wrote Justice Samuel A. Alito for the court.

Alito used the example of the Statue of Liberty, which was given to the United States by the government of France in 1884. America, he wrote, was free to accept the statue and erect it in a public space without having to accept and display a “Statue of Autocracy” donated by the German Empire or Imperial Russia.

Alito’s decision in Pleasant Grove City v. Summum made it clear that the display of these monuments is government speech – even though in the case of Pleasant Grove, the marker was donated by a private group. 

This statement, says Americans United, is crucial to understanding the case. If the Commandments monument is government speech, and government is not permitted to make religiously tinged speech, the marker could be vulnerable to a new legal challenge that cites the separation of church and state.

Brian Barnard, a Utah attorney who helped Summum litigate the case, said the ruling opens new legal doors for him.

“It’s like they are handing it to me on a silver platter,” Barnard told the Salt Lake Tribune. He said he would re-file the case, raising church-state issues.

Alito seemed to be anticipating that action. In his ruling, he noted that while the government has the right to pick and choose among permanent monuments, that does not mean there are no limitations on what the government can say.

“For example,” he noted, “government speech must comport with the Establishment Clause.”

The case was a tough one for attorneys at Americans United. The organization could not help but feel some sympathy for Summum’s argument. After all, the group was merely seeking equal time. Had the legal tussle been about temporary displays on public land sponsored by private religious groups, AU would have had no problem backing Summum.

But these displays are permanent and owned by the government, and that makes a difference. In AU’s view, government should not be in the business of displaying religious symbols or codes at all. Forcing a community to add more sectarian material to a public park only compounds the problem.

“No one expects that a community would be required to erect every symbol it is given,” said Americans United Executive Director Barry W. Lynn in a press statement. “The question lurking below the surface is why government should have the right to display religious symbols and signs at all.”

Americans United’s legal team filed a friend-of-the-court brief supporting neither side in the case. In the brief, AU attorneys urged the justices to avoid using the case to do damage to the separation of church and state. (Joining the brief were the American Jewish Committee, the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and People For the American Way Foundation.)

In its decision, the high court took AU’s advice. The separation of church and state lurks in the wings of the ruling but never takes center stage. Instead, the discussion focuses on free speech, the nature of public forums and other fairly esoteric issues that come into play whenever an arm of the state presumes to speak for all of its people.

Justice Antonin Scalia, however, couldn’t resist the opportunity to take a cheap shot at the church-state wall. In a two-page concurring opinion, Scalia pointed out that church-state issues have dogged the case, sarcastically referring to the “so-called ‘wall of separation between church and state.’”

Scalia asserted that the Commandments monument on display in Pioneer Park does not violate church-state separation and urged the people of Pleasant Grove to “safely exhale.”

“Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary – and yes, even its Ten Commandments monument – without fear that they are complicit in an establishment of religion.” (To no one’s surprise, Justice Clarence Thomas signed on to the Scalia concurrence.)

Taking the opposite view, Justice David H. Souter warned that there could be trouble down the line. The erection of permanent monuments on government land, he asserted, is bound to raise church-state issues.

Government, Souter said, could begin “to favor some private religious speakers over others by its choice of monuments to accept.”

What happens now? Although Barnard has vowed to litigate the case again and challenge Pleasant Grove’s display of the Ten Commandments as a church-state violation, there is no guarantee he’ll win.

In 2005, the Supreme Court ruled on a pair of cases challenging government displays of the Commandments in public spaces. The court split, permitting a Decalogue display among other monuments at the Texas State Capitol in Austin, holding that its focus was educational and historical. But it struck down a Commandments display at a courthouse in McCreary County, Ky., saying its purpose was to promote religion. (See “Decalogue Divide,” July-August 2005 Church & State.)

It’s unclear how the Supreme Court would perceive the Pleasant Grove display. Would they see it as a permissible historic display or assert that its primary purpose is to endorse religion? 

Complicating matters is that there have been changes on the high court since the 2005 rulings – McCreary County v. ACLU and Van Orden v. Perry – were issued. Former Chief Justice William H. Rehnquist stepped down and was replaced by John G. Roberts, and Justice Sandra Day O’Connor also resigned, leaving a spot for Alito.

The Summum case now moves into the law books, perhaps as little more than a footnote.

“This was a peculiar case,” said Ayesha N. Khan, legal director for Americans United. “At the end of the day, it doesn’t have much impact on church-state law. If a city were to erect a religious display, earlier church-state law would continue to govern – and AU would take as strong a stance as we would have before the Summum ruling came down.”