What the Summum Decision Means

Yesterday the Supreme Court handed down a decision regarding the case of Pleasant Grove City, UT v. Summum, The competing issues at hand were if a government body has the right to unrestricted free speech (including religious speech), and the idea that public land equals a public forum (with the government as caretakers, not gatekeepers). An argument that emerged when the New Age/UFO religion Summum wanted a monument to their Seven Principles placed in the same park as a Ten Commandments display. The unanimous opinion of the court was that in this particular instance the local government’s free speech claims trumped Summum’s free speech claims.

“The case centered on Pleasant Grove City, Utah, which displays a Ten Commandments monument in a public park. A religious group called Summum sought the right to erect its “Seven Aphorisms” in the park as well. When city officials declined, Summum sued, arguing that its free-speech rights had been violated. The Supreme Court analyzed the case under free-speech law, ruling 9-0 that it would be impractical to force communities to permanently erect every monument they are given.”

So is this loss a setback for religious minorities seeking equal standing with the dominant monotheisms? Not particularly. The decision here was a narrow one, and Supreme Court justices and analysts have both opined that the case could very well be re-heard on Establishment Clause grounds.

Justice John Paul Stevens provided this assessment of the Supreme Court’s new review of the constitutionality of placing religious monuments on government property: “…the effect of today’s decision will be limited.” In fact, in the 15 weeks between the Court’s hearing on Nov. 12 in Pleasant Grove City v. Summum (07-665) and the final decision Wednesday, one thing remained absolutely unchanged: the real dispute here was not about free speech, but about church-state relations. But that was not even argued. At the oral argument, Chief Justice John G. Roberts, Jr., told a lawyer for the small Utah city defending  its policy on a Ten Commandments monument in a city park: “You’re just picking your poison, aren’t you?  I mean, the more you say that the monument is government speech, to get out of the Free Speech Clause, the more it seems to me you’re walking into a trip under the Establishment Clause.”

To quote court-watcher Dahlia Lithwick, if Pleasant Grove City “wins this case as a result of the court’s free speech jurisprudence, [they] will be back in five years to lose it under the court’s religion doctrine.”. This was echoed by Americans United executive director Rev. Barry Lynn who stated that “the case should have been analyzed under church-state doctrine” instead of on free-speech grounds. So expect to hear about this case again very soon, Summum’s lawyers are already gearing up to challenge the ruling on Establishment grounds, and the justices seem to be warning Pleasant Grove to act fast or lose the next round.

Although the Supreme Court case centered on the Free Speech clause of the First Amendment, the Establishment Clause loomed in the background. Alito noted that his decision does not imply that there are not restrictions on government speech. “For example, government speech must comport with the Establishment Clause,” he said. Justice David Souter said the connections between the Establishment Clause and government speech have not yet been figured out. He said it would be “in the interest of a careful government” to have more than one monument to avoid an appearance of establishing religion.

Pleasant Grove should heed Justice Souter, for while arch-conservative Justice Antonin Scalia says that this monument’s circumstances are “virtually identical” to one allowed to stand in Texas, that Ten Commandments existed in a continumm of over 40 other monuments, dulling Establishment claims. Ultimately, neither side here can claim a lasting victory. Summum may not be able to erect their monument (which could have radically changed the management of public lands), but in the long run Pleasant Grove will have to have to either add more monuments to avoid Establishment Clause challenges, or take down all religiously-oriented monuments (the path favored by Americans United). This decision brings the case back into the more familiar (if sometimes complex) area of past religious monument cases. That might not result in a big dramatic shift in legal opinion as it would have if Summum had won here, but it will most likely follow the course of rulings that have been slowly secularizing our public spaces for a post-Christian and multi-religious American future.