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Supreme Court Says Utah City Is Not Required To Place Summum Monument In Park

By Howard M. Friedman

The U.S. Supreme Court today handed down its decision in the major religion case on this term's docket. In Pleasant Grove City, Utah v. Summum, (Sup. Ct., Feb. 25, 2009), the Court ruled unanimously that a Utah city can refuse to allow a religious group, Summum, to put up a monument containing its "Seven Aphorisms" in a public park, even though a 10 Commandments monument and other monuments are already there. The city limits monuments to either those directly related to the city's history or those donated by groups with longstanding ties to the community.

Justice Alito wrote the Court's opinion, which was joined by all justices except Justice Souter. Four concurring opinions were also filed. Justice Alito wrote:

although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

Justice Alito made it clear however that there are still some constraints on government speech, such as the Establishment Clause.

Justice Stevens' short concurrence (joined by Justice Ginsburg) expresses doubt about some of the Court's earlier "government speech" cases. He says that today's decision does "not give the government free license to communicate offensive or partisan messages" that violate the Establishment or Equal Protection clauses. Justice Scalia's short concurrence (joined by Justice Thomas) emphasizes that the park's existing 10 Commandments monument does not violate the Establishment Clause under existing precedent. He writes: "The city ought not fear that today's victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire."

Justice Breyer, also writing a short concurrence, says that the "government speech" doctrine needs to be seen as "a rule of thumb, not a rigid category." He looks at whether the city has imposed a disproportionate burden on Summum's freedom of expression. Justice Souter wrote a separate opinion "concurring in the judgment." He rejects the majority's categorical classification of permanent monuments as government speech. He urges that, instead, the Court should 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."

The decision reverses a ruling by the 10th Circuit in the case below. (See prior posting.) The New York Times reports on today's decision. [Thanks to Joel Sogol for being the first to report this on Religionlaw listserv.]

Full post as published by Religion Clause on February 25, 2009 (boomark / email).