Public forums at heart of 2 cases

Tuesday, April 1, 2008

WASHINGTON — Nearly three years ago, the Supreme Court ruled that a 40-year-old Ten Commandments monument could remain on display on the public grounds of the Texas State Capitol.

Now, the inevitable other shoe has dropped. The high court agreed yesterday to hear the plea of a Utah community with a similar Ten Commandments display on park grounds. Pleasant Grove City officials are asking not to be forced to allow a monument proposed by the little-known religion called Summum.

The case Pleasant Grove City v. Summum, is one of two First Amendment disputes the Court agreed yesterday to review, both involving the knotty issue of what constitutes a public forum — and what kinds of expression can be forbidden in such forums. The other case is Ysursa v. Pocatello Education Association and involves payroll deductions for political activities.

In the Pleasant Grove City case, the Summum religion claimed its First Amendment free-speech rights were violated when the city refused its request to erect a monument to its Seven Aphorisms near the Ten Commandments monument in the city’s Pioneer Park. Among the aphorisms that form the basis of the Salt Lake City-based religion: “Nothing rests; everything moves; everything vibrates.” Citing Supreme Court precedent, Summum said the city had created a public forum by allowing the Ten Commandments display and as a result could not pick and choose which speech to allow.

The city, seeking to draw a line between the Ten Commandments monument donated by the Fraternal Order of the Eagles in 1971 and the Summum display, said it only allowed displays that related to the city’s history or were donated by groups with long ties to the community. As the case entered the courts, the city also argued that the Ten Commandments display was the government’s speech, not private speech. Under Court doctrine, government can be more discriminating in what messages to allow on public property if it, rather than a private citizen, is the speaker.

A three-judge panel of the 10th U.S. Circuit Court of Appeals ruled in favor of Summum, agreeing that the park was a public forum and the Ten Commandments display was private speech — which meant that the city could not arbitrarily refuse Summum’s request.

The city’s request for the full 10th Circuit to review the ruling failed by a 6-6 vote, with Judge Michael McConnell, a longtime expert on religion-clause jurisprudence, warning that “every park in the country” with a Veterans of Foreign Wars memorial had been transformed into a public forum for monuments. “They must either remove the war memorials or brace themselves for an influx of clutter.”

The city appealed, assisted by Jay Sekulow of the American Center for Law and Justice. Sekulow over the years has perfected the strategy of framing religion cases as free-speech challenges against government, and argued in favor of the Texas Ten Commandments display three years ago. Now he is on the side of government, arguing that the Summum dispute should be viewed as a government-speech case, not one involving individual free expression.

When a city accepts a donated monument, Sekulow argues, “The donor is no longer the speaker. No other private donors can insist that the government accept their additional monuments so that they can be speakers, too.”

Sekulow also said in a statement yesterday: “The government has to be neutral toward private speech, but it does not have to be neutral in its own speech.”

Summum, represented by Pamela Harris of O’Melveny & Myers, had urged the high court to leave the 10th Circuit decision standing. Until the litigation began, she argued, the city had treated the Ten Commandments display as private speech. As such, it was unremarkable that the appeals court would have ruled that discriminating against Summum was a First Amendment violation. If the city had made clear the Ten Commandments memorial represented government speech, the dispute would not have arisen, she said.

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, went further. “If government creates an open forum it can’t pick and choose among religions. Government officials could have avoided this controversy by refusing to put up the Ten Commandments in the first place.”

A coalition of veterans groups filed a brief with the Supreme Court expressing its fear that a ruling in favor of Summum would “lay the foundation for the destruction of all veterans memorials nationwide.”

The brief asserts that under the 10th Circuit’s reasoning, if someone donated a monument to honor Japanese kamikaze pilots, the display would have to be permitted to stand next to the Iwo Jima memorial in Arlington, Va. Similarly, a bust of Ho Chi Minh would have to be allowed alongside the Vietnam Veterans War Memorial.

Faced with that prospect, the groups say, many of the memorials would be torn down. “The Tenth Circuit has authored a recipe for chaos,” writes Kelly Shackelford of the Liberty Legal Institute, author of the veterans' brief.

But the lawyers for Summum say this “parade of horribles” would be easily avoided if government bodies take steps from the outset to make it clear that any new monuments represent government speech. They could do this, Harris said, “by the installation of signs making clear that the donated items reflect the views of the government.”

The other case granted review by the high court yesterday involves a 2003 Idaho law that forbids payroll deductions for state and local employees for “political activities.” Idaho allows payroll deductions for union dues and fees if an employee specifically requests the deductions, but the new law specifically targets payroll deductions for political parties or political action committees.

Public-employee unions challenged the law, and the 9th U.S. Circuit Court of Appeals ruled in their favor. The appeals court viewed the state’s payroll-deduction program as a public forum in which discrimination against certain types of speech could not be allowed.

Idaho appealed, arguing that government agencies have “no affirmative obligation” to assist political groups by giving them access to their payroll systems.

The unions replied that when a state “reaches out to restrict speech” as they say Idaho did, the heightened “strict scrutiny” standard should be applied to the state’s action, and the law should be overturned.

Stefan Gleason, vice president of the National Right to Work Legal Defense Foundation, applauded the high court’s decision to review the 9th Circuit ruling. “Stripping union officials of their payroll deduction privileges is good public policy,” he said. “In fact, the state of Idaho should have gone much further than it did — by banning outright the use of public facilities to collect any union funds whatsoever.”

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