Supreme Court to Utah-Based Religion: Sorry, Summum

[WSJ Law Blog]

Corky Ra, the founder of Summum, stands next to a mummified version of his dog, Butch, a Doberman, finished in gold leaf, in Salt Lake City in 1995. (AP)

May governments decide what to display in a public park without running afoul of the First Amendment? The Supreme Court answered a rather emphatic ‘yes’ to that question today in the case involving Summum, a Utah-based religious group that had tried to force Pleasant Grove City, Utah, to place a granite marker in a local park. Click here for the WSJ story; here for the AP story; here for an earlier story on the case from the WSJ’s Supreme Court reporter, Jess Bravin, here and here for previous LB coverage on the case.

For now, a quick refresher: In 1971, Pleasant Grove City accepted a red granite monument featuring the Ten Commandments for placement in Pioneer Park. But in 2003, when the president of the Summum church asked the mayor of Pleasant Grove City to accept a monument inscribed with the religion’s Seven Aphorisms, the city said no thanks.

The Tenth Circuit ruled that the city violated the free speech rights of the Summum by rejecting the Aphorisms.

The constitutional question bandied about at argument was whether, because Pleasant Grove City accepted the Ten Commandments monument, it must accept the Seven Aphorisms monument. That is, in the parlance of First Amendment lawyers, is the Ten Commandments monument private speech made by a private citizen or group or government speech? If it’s the former, the city’s denial of the Seven Aphorisms display is subjected to so-called “strict” constitutional scrutiny. If it’s the latter, the speaking government entity has greater freedom to pick and choose among messages.

The court unanimously reversed the Tenth Circuit, establishing that the city was within its constitutional rights to reject the marker. (Eight justices signed Justice Alito’s opinion; Justice Souter concurred in the judgment but wrote separately.) We checked in Jess Bravin today to clear up our questions.

Hi Jess, thanks for taking the time. So how did Alito justify what Pleasant Grove City did?

First, with no disrespect toward Summum or any other faith, let me offer up a bit of a broader take. This case seemed to me the type where we all knew that there was no way the Supreme Court would affirm the Tenth Circuit and embrace a doctrine that says that any crackpot who shows up with a slab of granite and a pickup truck can demand that a monument get installed on, say, the National Mall. So I think at the outset that the Court likely knew its destination. The question was how it would get there.

So how did Alito get there?

Alito relies on the theory, advanced at the Tenth Circuit by dissenting judge Michael McConnell, that the city’s editorial decision about what to put in the park is government speech. Under previous case law, if the government itself is speaking, it doesn’t necessarily have to provide for opposing points of view.

Okay. It’s our understanding that Alito defines the issue as one pertaining to the Free Exercise clause of the First Amendment. But there’s another clause in the First Amendment that pertains to religion, the Establishment clause, which, broadly speaking, says that Congress can’t favor one religion over other. How does Alito get around that?

Well, he doesn’t address it head on, exactly. But he does talk at length about how difficult it can be to figure out the meaning behind a governmental body erecting a monument or statue — how the meaning behind such a display can vary widely, depending on the viewer’s point of view.

For instance, he mentions the ‘Imagine’ monument in Central Park. Some might view that as an invitation to imagine what John Lennon might have produced had he not been murdered. Others might link it directly to the lyrics of the Lennon song “Imagine,” which Alito helpfully reproduces in their entirety in a footnote — something, I’d note, that most authors would not be able to do without permission. Alito makes similar points in regard to the Statue of Liberty, the Vietnam Veterans Memorial and a Statue of Pancho Villa that was given to the city of Tucson, Ariz., by the Mexican government.

In other words, it can be hard the precise message is. As we reported in 2001, even the Ten Commandments monuments around the country have at least a dual purpose. Cecil B. deMille encouraged their installation in the 1950s to promote his picture, “The Ten Commandments,” and sent Yul Brynner to unveil one in Milwaukee.

So what’s the result here? Beyond the facts of this case, is this ruling going to have much of an effect?

The effect is: Ten Commandments in, Seven Aphorisms out. And, in fact, it may be impossible to install a Seven Aphorisms monolith even if Pleasant Grove City wanted to. In 2005 Supreme Court cases commonly referred to as the “Ten Commandments cases,” the controlling opinion by Justice Breyer suggested that the noncontroversial longevity of the Ten Commandments monuments itself made their continued residence on the Texas state capitol grounds constitutional. But taking affirmative steps to install a religious display today might seem much more like an Establishment clause issue.

Anything interesting in the concurrences?

Justice Scalia, who was joined by Justice Thomas, took on the Establishment clause argument. He wanted to make clear that “the city ought not fear” Establishment clause challenges. He rested this argument on Justice Breyer’s opinion in 2005. But the other seven justices — including Breyer — didn’t seem inclined to go this far.

Justice Stevens made a different point, basically that he’s uncomfortable with government speech doctrine. It’s been used to insulate the government from First Amendment challenges, and Stevens has his doubts.

Gotcha. Thanks much for taking the time, Jess.

Any time.