Polk Law Blog

I want to reflect on a recent Supreme Court decision as well as recommend a really great book. 

The recent decision of the U.S. Supreme Court in Pleasant Grove City v. Summum addresses the question of “whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected.” See more below the fold.

Summum is a small religious group that wanted to put up a monument in a public park in Pleasant Grove, Utah. Looks like an easy decision for the city: No. But it wasn’t quite that simple. The City had previously accepted a donated monument displaying the ten commandments. Summum asserted that if one religion was allowed to put up a monument, they should, too.  The case appeared to raise really serious questions about freedom of religion. Can a city allow one religious group to worship in public area but not another? Can a city restrict the types of religious messages conveyed on public property?

One could envision this case as a clever test case, though I am not sure if it was planned that way. Ten commandments displays are often justified on the grounds that they are part of larger displays of religious history that involve other faiths and cultures. Are these justifications honest or just a clever subterfuge to get the ten commandments display up? By offering a ridiculous alternative, the Summum could be seen as attempting to throw a wrench into the spokes of the analysis to see if it really makes sense. The question posed is this: OK, city, if you are really serious when you say that your ten commendments display is part of a more broad homage to religious history, how do you like this! By rejecting this, aren’t you admitting that the ten commandments display is an unconstitutional establishment of religion by government?

The Supreme Court had little difficulty sidestepping such troublesome questions unanimously, finding that a City was free to put up whatever monuments it wanted. The question is not one of free speech, the court said, because a monument is not like a worship service, or a flyer, or a public speech, which the government cannot easily restrict. A monument, the court said, is a form of government speech, as opposed to individual speech. Governments are free to say whatever they want, as long as it doesn’t “establish” an official religion. They can adopt whatever messages they wish from their citizens, such as supporting civic groups or helping an environmental group by speaking out in favor of recycling (my examples, not the courts). They are not required to adopt every message that comes along. 

(Why didn’t the court address whether the ten commandments display established a religion? Easy. Because that wasn’t the case. This was a suit by a group that wanted to put a monument up, not a suit by someone who wanted the ten commandments monument taken down. It was a clever attempt to make an argument through the back door.)

I think this was clearly the correct decision, and an easy decision. But it doesn’t make the underlying controversy any easier to sort out. 

All this fit nicely in the context of an excellent book I am reading: Founding Faith by Steven Waldman.  It’s a very unbiased and well-researched look at the religious convictions of our founding fathers and how we ended up with our uniquely American notions of religious freedom and church/state separation. It turns out that it isn’t nearly as simple as either side would have you believe. Highly recommended.