Court cuts speech issue out of Summum case

Thursday, February 26, 2009

WASHINGTON — One way for the Supreme Court to solve a tough First Amendment problem is to write the First Amendment out of it.

That is how the Court yesterday made it possible for Pleasant Grove City, Utah, to keep a longstanding Ten Commandments monument on public park land, and yet refuse to erect a “Seven Aphorisms” display for the Summum religion in the same park.

What is uncertain in the wake of the Court’s unanimous decision in Pleasant Grove City, Utah v. Summum is whether the First Amendment will creep back into the equation in future litigation. Several justices wrote concurring opinions to caution that the issue has not been resolved for all time, and some commentators agree.

If the Court had analyzed the monuments as private speech in a public forum — which parks usually are — rejecting the Summum monument would have been a form of viewpoint discrimination that would be hard to permit under the First Amendment. That is how the 10th U.S. Circuit Court of Appeals viewed the case, and it ordered the city to allow the Summum monument.

So Justice Samuel Alito Jr., writing for the Court, converted monument placement into a form of government speech, which under the Court’s evolving doctrine on the subject, virtually immunizes it from First Amendment scrutiny. The Court has said that government is free to pick and choose the messages it conveys and adopts for itself. Government is “entitled to say what it wishes,” the Court said in the 1995 decision Rosenberger v. Rector and Visitors of University of Virginia.

Alito justified the conversion in both practical and philosophical terms. At a practical level, defining parks as a public forum where all speakers are allowed makes sense only when the speech is fleeting or temporary, he said.

“Speakers, no matter how long-winded, eventually come to the end of their remarks,” Alito wrote. “Persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure.”

For that reason, Alito wrote, it is not possible for cities to invite all comers to place memorials in their parks. By accepting a veterans’ memorial, Alito said, cities open themselves under the public-forum doctrine to being asked to “provide equal treatment for a donated monument questioning the cause for which the veterans fought.”

The result would be clutter and chaos which, Alito said, would ultimately lead cities to bar monuments altogether. “Where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place,” Alito wrote.

At a loftier level, Alito said that in fact memorials, unlike a parade of speakers on a soapbox, do represent the views of government, which usually is careful about which monuments to accept or erect. “Governments have long used monuments to speak to the public,” Alito said, launching into a history of monuments, ranging from the Iwo Jima Memorial in Washington, D.C., to the “Imagine” mosaic dedicated to John Lennon in New York City’s Central Park.

Alito went on to say that a monument can convey multiple messages, or a message that can change over time. As an example, he noted that the Statue of Liberty was a gift from France meant to symbolize the friendship between that country and the United States. Only later did it become a beacon for immigrants.

Significantly, Alito also wrote that in a accepting a monument, a city may have in mind a message that “may be quite different from those of either its creator or its donor.” As a result, the government entity “does not necessarily endorse the specific meaning that any particular donor sees in the monument.”

That language may become important if, as some justices and organizations are warning, yesterday’s decision does not end all litigation about monuments.

Here is the concern: If a monument is now viewed as government speech, and the only speech it is conveying is the Ten Commandments, does that create a new problem under the establishment clause, namely the problem of government preference for one religion over another?

“The case is now morphed into an establishment-clause claim,” Summum lawyer Brian Barnard told the Deseret News after the decision was announced. “You’ve painted yourself into a corner. If it’s your speech, now we have a problem because you just adopted the Ten Commandments as your speech, and you’re telling us you won’t adopt the aphorisms as your speech.”

But Barnard wouldn’t necessarily win an establishment-clause claim against the city. In 2005, the high court in Van Orden v. Perry found that a longstanding Ten Commandments display on the grounds of the Texas Capitol — almost identical to the one in the Utah case — did not run afoul of the establishment clause because of its secular and historical aspects and because it had gone unchallenged for decades.

Alito’s opinion yesterday acknowledged that government speech “must comport with the Establishment Clause,” suggesting that he thinks the actions of Pleasant Grove City that he upheld would pass muster.

And in a concurrence, Justice Antonin Scalia sought to allay fears that yesterday’s decision would create a new set of establishment-clause problems. Citing the Van Orden decision, Scalia, joined by Justice Clarence Thomas, wrote: “The city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment. … The city can safely exhale.”

Ayesha Khan, legal director of Americans United for Separation of Church and State, agrees that because of Van Orden, the Summum ruling will not trigger a flood of establishment-clause claims, though “it by no means closes the door” to challenges under certain circumstances. “This decision neither retreats from nor advances establishment-clause jurisprudence.”

Patricia Millett, one of the lawyers for Pleasant Grove City, said a city might still run into trouble if “the Ten Commandments is the only thing in the park, and they have a spotlight on it,” leading to the inference that government is “picking one religious view over another.” The Ten Commandments display in Pleasant Grove City is one of 15 monuments in the park.

But other justices, while siding with Pleasant Grove City, were more cautious than Scalia in their assessment of future establishment-clause problems.

Justice David Souter, for example, said, “The interaction between the ‘government speech doctrine’ and Establishment Clause principles has not … begun to be worked out. The case shows that it may not be easy to work out.”

A city seeking to avoid establishment-clause problems, Souter added, would be well-advised to “take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized. In such an instance, there will be safety in numbers, and it will be in the interest of a careful government to accept other monuments to stand nearby, to dilute the appearance of adopting whatever particular religious position the single example alone might stand for.” But even then, Souter indicated, establishment -clause objections could be raised.

Justice John Paul Stevens also cautioned that the government-speech doctrine is “recently minted” and “of dubious merit.” He said even after the Summum ruling, government won’t likely “be able to avoid political accountability for the views that it endorses or expresses.”

The government-speech doctrine also won only faint praise from Justice Stephen Breyer, who called it “a rule of thumb, not a rigid category.” The city’s action was justified whether or not it was government speech, Breyer said, in part because Summum can still express its views in the park in “more transient” forms than a monument.

Breyer added, “Were the City to discriminate in the selection of permanent monuments on grounds unrelated to the display’s theme, say solely on political grounds, its action might well violate the First Amendment.”