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Ten Commandments Displays Head Back to Supreme Court

Can a display be government speech without the government actually endorsing the message?

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:

It does seem to me that if you say it's Government speech, that in later cases, including the case of the existing monument … you have an Establishment Clause problem.

Sekulow disagreed, saying that in such a case, the Utah display would be akin to the display at the Texas State Capitol (also donated by the Fraternal Order of Eagles), which a plurality of Supreme Court justices found constitutional in 2005's Van Orden v. Perry.

Like Sekulow's ACLJ, the Christian groups supporting Pleasant Grove through amicus briefs are careful to distinguish between their support for government support of the Ten Commandments display and government restrictions in actual public forums. The brief filed by the Alliance Defense Fund and Family Research Council is typical:

Like any other citizen, [Summum] is always welcome to openly share his views on the grounds at Pioneer Park through personal communication, literature distribution, temporary placards, or a soapbox. He can rove the grounds to proselytize and share his "Seven Aphorisms" as often as he desires. But, unless the local government consents, he has no right to commandeer public property to permanently memorialize his message. No citizen does. …
In the present case, because there was no forum created, there was no opportunity for such viewpoint discrimination. But this Court's opinion should point out that if Pleasant Grove had opened a designated forum for private displays in Pioneer Park, city officials could not have excluded the Ten Commandments monument donation, the "Seven Aphorisms" … nor any other submission on the basis of religion or religious viewpoint. (emphasis in original)

The clarification from the Becket Fund for Religious Liberty is worth reading as well:

[J]ust as a short-term unattended display may be either government speech or private speech, so too a long-term, virtually permanent inscription on public property may be either government speech or private speech. The monument in the present case is surely government speech. The city, after all, is free to do with it as it pleases; it can alter the inscription, move the monument, or take it down altogether, at any time for any reason.
It is important to distinguish this type of long-term government speech from the sorts of long-term private speech that occur in religious messages or symbols placed, for example, on headstones in government cemeteries or on bricks or tiles commonly sold by, and placed in walls or walkways of, public schools and libraries for fundraising purposes. These latter sorts of inscriptions are intended to remain in place indefinitely, if not permanently. Nevertheless, they remain private speech and the government should not be permitted to selectively censor them no matter how long they remain in its power and physical control.

Summum, meanwhile, found help from only one of the Christian law firms: the Rutherford Institute (whose head, John Whitehead, loves being a gadfly). The group seems particularly miffed at slippery-slope arguments that would, for example, require a Statue of Tyranny next to the Statue of Liberty, or a pro-al Qaeda display at a 9/11 memorial. But the bulk of Rutherford's brief complains that Pleasant Grove wants it both ways: It wants to say the monument is government speech, but doesn't want to actually endorse the Ten Commandments display as its own. The city isn't standing by the content of the message, only by its rule that displays directly connect to the city's history or be donated by a group with longstanding community ties.

Whitehead wants the Supreme Court to send the case back to the district court to find out whether the city wants to stand by the text of the monument or not. Meanwhile, he says:

[T]he City's position — that merely granting access to a forum automatically shrouds speech with the protection of the government speech doctrine, "without [the City] necessarily subscribing to the precise messages engraved thereon," — only proves that it is not, in fact, "government speech" because the message is admittedly not one from government. … Shielding a private party's speech from First Amendment scrutiny by false labeling is constitutionally mendacious.

In today's oral arguments, Justice David Souter suggested that the problem isn't whether the commandments display is government or private speech. The problem, he said, is that it's both:

Isn't the tough issue here not so much whether there is Government speech[?] I will assume and I do indeed assume that there is. Isn't the tough issue here the claim that there is — is in fact a mixture, that it is both Government and private[?] [Sekulow is arguing that the government changes the equation] by eliminating the private aspect of the speech. So that your real answer to me is it's not a mixture. … There ceases to be a mixture the moment the Government accepts it.

Justice Steven Breyer agreed.

The problem I have is that we seem to be applying these subcategories in a very absolute way. Why can't we call this what it is — it's a mixture of private speech with Government decision-making — and ask the question, as we do in election cases, is the restriction proportionate to a legitimate objective?

Kennedy, it seems, is on the same wavelength:

This case is an example of the tyranny of labels. Because it's a public forum … for parades, for protests, which are limited temporally. It just seems wooden and rigid to say to all of a sudden say, well, it's a public forum for something that will last 30 years for which there is only limited space. It just doesn't make common sense.

Wooden, rigid, and tyrannical it may be, but as Scalia noted, "We need a clear rule here. We can't expect the courts (or the cities for that matter) to investigate in every case what the degree of the Government's involvement is. … That's not the way threshold constitutional questions ought to be resolved. We need a clear rule that the cities can rely on."

Related Elsewhere:

More analysis of the oral arguments is available from SCOTUSBlog and Religion Clause.

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