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In 1971, the Fraternal Order of Eagles donated a Ten Commandments monument to the City of Pleasant Grove, Utah. The city government put the monument in Pioneer Park.

So whose monument is it? Whose message is on the monument? The Fraternal Order of Eagles's? Or the government of Pleasant Grove's?

That's basically the question the Supreme Court took up today.

Actually, the case isn't precisely about Ten Commandments displays, and court watchers don't expect the justices to significantly reconsider its crazy and confusing Ten Commandments rulings from 2005. Rather, it is supposedly about another display: that of Summum "Corky" Ra, the leader of a small Gnostic sect based in Salt Lake City. He wants his "Seven Aphorisms" displayed in the park, too.

Ra says that by posting the Ten Commandments, Pleasant Grove turned Pioneer Park into a public forum. And in a public forum, when you allow one private message, you have to open it up to all comers. Excluding the Seven Aphorisms, he says, amounts to restricting free speech.

But the Ten Commandments is not private speech, Pleasant Grove says. It is government speech, and with government speech you don't have to offer opposing viewpoints. The 10th U.S. Circuit Court of Appeals disagreed, and said the monument was indeed private speech rather than government speech.

It sounds like a big church-state case, but whatever the Supreme Court decides, it probably won't affect church-state issues all that much. Both sides agree that this is really a free-speech case, not a religion case. Then again, a huge number of the oral arguments this morning focused on whether the Ten Commandments display itself violates the First Amendment's Establishment Clause, not whether leaving out the Summum display violates the free-speech clause.

The New York Times today says it most certainly is a church-state case. "The court should rule that that city's decision violates the First Amendment prohibition on the establishment of religion," the paper said in an editorial. "The federal appeals court reached the right result, but regrettably, it ducked the issue at the heart of the case, which turns on the Establishment Clause of the First Amendment. The real problem is that Pleasant Grove City elevated one religion, traditional Christianity, over another, Summum."

In addition to being represented by the American Center for Law and Justice (ACLJ), Pleasant Grove City had most of the Christian legal firms in its corner with amicus briefs: Alliance Defense Fund, Family Research Council, Becket Fund for Religious Liberty, and Liberty Counsel. (The City also got an amicus brief from former Alabama Chief Justice Roy Moore, the "Ten Commandments Judge" from a few years back.)

Most of these firms have long argued on behalf of religious groups seeking access to public forums. Jay Sekulow's ACLJ, for example, even supported a student's right to display a "Bong Hits 4 Jesus" banner at a public event.

Chief Justice John Roberts picked up on this and asked the first question of today's arguments:

Mr. Sekulow, you're really just picking your poison, aren't you? I mean, the more you say that the monument is Government speech to get out of the first, free speech — the Free Speech Clause, the more it seems to me you're walking into a trap under the Establishment Clause. If it's Government speech, it may not present a free speech problem, but what is the Government doing speaking — supporting the Ten Commandments?

Before Sekulow got to his answer, Justice Anthony Kennedy chimed in:

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November (Web-only) 2008, Vol. 52