Summum decision answers some questions, raises others

Tuesday, March 3, 2009

One of the privileges that comes with sitting on the U.S. Supreme Court is being able to have your cake and eat it too.

We were reminded of this last week in the Court’s decision in Pleasant Grove City, Utah v. Summum. In Summum, the Court held that a city’s placement of a Ten Commandments monument in a public park does not require the city to erect monuments in the park honoring other religions. In doing so, the Court relied on the increasingly powerful government-speech doctrine, which exempts speech made or endorsed by the government from First Amendment scrutiny.

At the same time, however, the majority of the Court’s members ignored the obvious question created by their ruling: If a religious monument is government speech, doesn’t that speech violate the First Amendment’s establishment clause?

While the Court’s establishment-clause jurisprudence is far from clear, the clause generally has been held to prohibit the government from favoring one religion over another and, in some cases, from favoring religion over non-religion. Reconciling religious government speech with the establishment clause therefore is problematic at best.

Reconciling these principles was made even more difficult by the lengths to which Justice Samuel Alito Jr. went to establish monuments in public parks as government speech.

“Governments have long used monuments to speak to the public,” Alito wrote in the Court’s unanimous opinion. “Since ancient times, kings, emperors, and other rulers have erected statutes of themselves to remind their subjects of their authority and power. … A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.

“Public parks are often closely identified in the public mind with the government unit that owns the land,” he continued. “City parks … commonly play an important role in defining the identity that a city projects to its own residents and to the outside world… . Government decisionmakers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture. The monuments that are accepted, therefore, are meant to convey and have the effect of conveying a government message.”

Indeed, Alito concluded, the city’s acceptance of the monument from a private donor “unmistakably signif[ies] to all Park visitors that the City intends the monument to speak on its behalf.”

Doesn’t it follow, then, that religious speech erected in exercise of the government’s “authority and power” endorses (if not establishes) religion? How can a monument intended to convey religious thought or instill religious feeling not favor religion over non-religion? How can government pretend it is not endorsing religion when it incorporates religion into its identity and conveys permanent religious messages?

Perhaps not surprisingly, Alito did not attempt to answer these or similar questions. Justice David Souter, however, was troubled by these newly created establishment-clause problems.

“The interaction between the ‘government speech doctrine’ and Establishment Clause principles has not … begun to be worked out,” Souter wrote in a concurring opinion. “After today’s decision, whenever a government maintains a monument it will presumably be understood to be engaging in government speech. If the monument has some religious character, the specter of violating the First Amendment will behoove it to take care to avoid the appearance of flat-out establishment of religion.”

To Souter, the best approach is to avoid per se rules like the government-speech doctrine and to instead “ask whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land.” This approach, Souter wrote, would “serve coherence within Establishment Clause law” and “make sense of our common understanding that some monuments on public land display religious symbolism that clearly does not express a government’s chosen views.”

Whatever the merits of Souter’s approach, his attempt to distinguish religious symbolism from religious views appears at odds with the Court’s pronouncement that all government speech conveys a government message. At least two justices, however, were entirely comfortable with the government message conveyed by a Ten Commandments monument.

In a concurrence joined by Justice Clarence Thomas, Justice Antonin Scalia 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.” The Ten Commandment monument presents no establishment-clause issue, Scalia asserted, because the Ten Commandments “have an undeniable historical meaning” and because the multiple monuments and historical markers in the Pleasant Grove City park suggest that the city intended the Ten Commandments monument to convey a “permissible secular message.”

To support his argument, Scalia relied on the Court’s 2005 decision in Van Orden v. Perry, in which it allowed Texas to display a similar Ten Commandments monument on the grounds of the state Capitol.

The decision in Van Orden, however, was not the clear-cut victory for the Ten Commandments that Scalia claimed. Only four justices supported the view that the Ten Commandments’ historical meaning outweighed the religious significance, and in casting the fifth vote in favor of the monument, Justice Stephen Breyer called the case “borderline” and noted that the monument’s acknowledgement of the private donor (the same donor of the Pleasant Grove City monument) “further distances the State itself from the religious aspect of the Commandments’ message.”

Under the Court’s definition of government speech in Summum, however, such distance no longer exists. After Summum, government speech (at least in parks) is intentional, meaningful and part of the government’s identity. Government, it necessarily follows, means what it says.

Except, maybe, in the realm of religion. There, we’re to understand, government means the secular part, not the religious part, even if it’s quoting the Bible. I wonder whether the same will hold true when some U.S. city somewhere starts erecting monuments quoting the Quran.

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