Legal News

Seven Aphorisms and the First Amendment: A Look at Oral Arguments

By Dan Slater

With the whales decision behind us, let’s turn to the Summum case. This morning, lawyers went before the High Court to argue the big free speech case. A refresher: In 1971, Pleasant Grove City, Utah, accepted a red granite monument featuring the Ten Commandments for placement in Pioneer Park. But in 2003, when the president of the Summum church asked the mayor of Pleasant Grove City to accept a monument inscribed with the religion’s Seven Aphorisms, the city said no thanks.

The constitutional issue, then, is whether, because Pleasant Grove City accepted the Ten Commandments monument, it must accept the Seven Aphorisms monument. In other words, is the Ten Commandments monument speech made by a private group or citizen, making the city’s denial of the Seven Aphorisms display subject to strict constitutional scrutiny, or is it government speech, in which case the speaking government entity has greater freedom to pick and choose among messages?

We spent some time on the phone with the WSJ’s Supreme Court reporter, Jess Bravin, who attended this morning’s arguments.

Hi Jess. So tell us about the atmosphere at the Court today. Many people find the Summum religion pretty fascinating. Was the content of the religion discussed much?

Well, there were no mummies or sacramental nectars, and no visits from the Summum individuals who delivered the truth about creation to [Summum founder] Corky Ra. In fact, there was no conversation at all about the content of the speech at issue.

But it was still an animated argument about the free speech clause, the establishment clause and the meaning of government speech versus private speech.

Tell us about that.

Well, it’s clear that no existing doctrines cover the issue: When does private speech become government speech and what obligations does the government have to provide for alternative points of view in public spaces?

The Tenth Circuit Court of Appeals found that Pleasant Grove’s Pioneer Park is a public forum, that the Ten Commandments monolith placed there in 1971 was private speech and that the government had to remain content-neutral. In other words, the city can’t let one private speaker speak through its granite tombstone without allowing another speaker the same right.

If the Court decides in favor of the Summums, can any religion request that the government display its monument in the park?

There were various parades of horribles that the different sides brought up. On one hand, it doesn’t seem fair to discriminate in favor of the much larger religion and exclude the smaller religion. On the other hand, you don’t want to turn every public park into a junkyard filled with a bunch of granite monuments for anyone who happens to have one.

Did you find any of the lawyers’ arguments particularly persuasive?

Yes. One of the lawyers for the city pointed out that the Gettysburg Battlefield memorial contains dozens of monuments that have been placed by private groups. The argument is that the government is free to accept private donations and then implicitly adopt them as their own speech.

One lawyer for the city took the very strong position that when the government speaks it has full discretion to say what it wants. For instance, the Mall in D.C. is a national park and it accepted the Veterans Memorial, which has names of Vietnam casualties. But then Alito asked whether the government would be free to put up the names of certain soldiers whose views it disagreed with? He said yes, under the First Amendment, the government could do that, although it might run into other constitutional problems, such as due process or equal protection. The exchange raised the question of what sort of choices the government gets to make.

What did the lawyer for the Summums argue?

Pamela Harris pressed an argument that it’s private speech unless the government explicitly adopts it as their own speech. She argued that the city just wants to suppress a disfavored message.

Did the justices seem to buy that?

Some of the justices pointed out that the government does that all the time. For instance, when you go into a public museum you may see a painting of the Virgin Mary. But the government is performing a curatorial function. It’s not adopting the message of the Virgin Mary.

Did the Court seem like it was leaning one way?

This is one of those constitutional problems that falls between the cracks. It’s not the kind of problem that was likely on the mind of the Framers because they were familiar with the established church of England. And there’s no case on point. All of the justices who spoke considered this to be a tough problem, except Scalia, who, in his way, didn’t find it too tough. He seemed to accept the city’s rationale that the Ten Commandments aren’t related to religion, necessarily, but more closely related to the pioneer heritage of Utah, and therefore the city hasn’t spoken on religion by accepting that monument.

But the other justices asked very probing questions of all the attorneys, recognizing that the problem doesn’t have a ready solution. But this kind of case is why they get paid the big bucks, even though they’d dispute that they do get the big bucks.

So what’s your hunch? That’s why we pay you the big bucks.

My hunch is that the Court seems unlikely to accept the Tenth Circuit approach — that the city’s refusal to display the Seven Aphorisms was an unconstitutional form of content-based discrimination. You’re going to find a fractured opinion, where they’re grappling with some kind formula.

I think some justices will take the approach of Van Orden v. Perry — allowing the grandfathering in things that have been there forever while taking a skeptical view of new monuments. [For WSJ coverage of the 2005 Van Orden case, click here and here.]

Thanks Jess.

No problem.

Full post as published by Law Blog - WSJ.com on November 12, 2008 (boomark / email).