In a series of cases involving a religious group called Summum, including two decisions issued in April 2007, the U.S. Court of Appeals for the Tenth Circuit held that a municipality’s decision to allow a private organization to erect a permanent monument on public property converts the property into a public forum to which other organizations must be given similar access. Thus, in cases where governmental bodies have allowed Ten Commandments monuments to be erected on public property, the Tenth Circuit ruled that equal treatment must be afforded to monuments of the Summum religion.
In August 2007, after the cities involved in the two most recent Summum cases filed a request for rehearing en banc, an equally divided Tenth Circuit denied the requests. The cities filed petitions for certiorari with the U.S. Supreme Court. The Court granted one, involving a city in Utah that had refused to place a Summum monument in a public park.
In June 2008, Americans United, the American Jewish Committee, the Baptist Joint Committee for Religious Liberty, People for the American Way Foundation, and the Anti-Defamation League filed an amicus brief in the case. The brief supported neither party. Rather, it explained that the case should be viewed as a church-state controversy instead of a free-speech matter, and argued that the government cannot play favorites among religions by denying a minority religious group’s request because of discomfort with the group’s religious views.
In February 2009, the Court ruled that the city was not required to erect the Summum monument. The Court reasoned that placing a permanent monument in a public park is a form of government speech, not private speech, and that therefore free speech concerns do not apply (although Establishment Clause concerns do apply). The Court also concluded that placing monuments in a public park does not create a public forum in which the government would have to act neutrally in allowing expression of all viewpoints.