Legal Commentary

Following up on an earlier post, oral argument in Summum is today.  Pamela Harris (O'Melveny and Lecturer at Harvard) is arguing for Summum; Jay Sekulow (ACLJ) is arguing for the City. 

But the lineup of amici is striking, and it reveals how weird this case is.  Usually, in church-state cases, there's a pattern.  The left files briefs for one side; the right files briefs for the other; and the federalism people and judicial restraint people file briefs for whatever side federalism and judicial restraint are on (not that they always go together).

But Summum is different.  One might expect that the left would file for Summum, while the right would file for the City.  But that hasn't happened.  The City has 16 amici briefs in its favor; poor Summum has only 2.  (I am reminded of Justice Scalia's maxim that when the amici are stacked in one's side favor, be suspicious.)  And many of the briefs from the traditional left (Americans United, The Baptist Joint Committee, the American Humanists) were filed  "in support of neither party."  So what is all that about?  And what do we make of the Rutherford Institute, a right-wingish public interest group, similar in some respects to the ACLJ, filing on Summum's behalf?  What is going on?

What makes Summum so much fun is that it crosses up the usual party lines.  The right has a natural sympathy with Summum's claim here.  For years, they've argued (sucessfully in cases from Widmar to Good News) that it's unconstitutional to exclude religious voices from the public square.  The left doesn't agree, sometimes itself relying on the government-speech doctrine to say that the government can shape its own speech the way it wants. 

Take legislative prayer, for example.  There are a number of modern cases where speakers are alleging constitutional rights to give "sectarian" prayers.  Their claims have some natural force -- if the government requires all prayers to be nonsectarian, it by necessity has to exclude people who would give sectarian prayers.  This means that people who are religiously obligated to pray to Jesus or Allah are simply out.  That's discrimination -- and the right argues that it's unconstitutional.  The left tends to see speakers as simply having no rights in the matter.  The left sees speakers in legislative prayer cases the way the City sees Summum -- as interlopers with no constitutional rights to come in and upset the apple cart.   The Rutherford Institute actually has a cert petition pending in one of these cases.  The institute filed it on behalf of a city councilmen who claimed a constitutional right to refer to Jesus Christ in his legislative prayers.  When Summum (probably) loses, the resulting decision will likely bury the councilman's claim.  That's, in part, what the Rutherford Institute is concerned about. 

So Summum will likely lose.  And its loss looks on the surface, to be a loss for the left.  But I am not so sure it is.  My guess -- and it's only, of course, just a guess -- is that it's Jay Sekulow and the ACLJ that will be the ones really complaining about Summum in years to come.

All for now; more later.  I can't wait for the transcripts.