Legal Commentary

It's been a quiet year for law-and-religion cases at the Supreme Court -- no Free Exercise cases, no Establishment Clause cases, nothing about the meaning of the various federal statutes addressing religious exercise (RFRA, RLUIPA, etc).

The closest thing we have is Pleasant Grove City v. Summum. Summum is a sort of follow-up to Van Orden v. Perry, which held that some government-sponsored Ten Commandments displays were constitutional. Summum was brought by a religious group that wanted to put up its own version of the Ten Commandments (the Seven Aphorisms, which they claim is what God really gave Moses) in a city park that already had a Ten Commandments display (one of a more traditional sort). In the Tenth Circuit, Summum won on its Free Speech claim; the Tenth Circuit found that the city park was a traditional public forum from which the plaintiff could only be excluded upon the showing of a compelling interest. On Wednesday, the Supreme Court will hear oral argument. And an interesting case it will be...

The case involves the government-speech doctrine. The First Amendment forbids government from discriminating against private speech, but it allows the government itself to say what it wants (that's the part that's known as the government-speech doctrine). So this case seems to boil down to whether the Ten Commandments display currently in the park -- which was donated to the City by the Fraternal Order of Eagles in 1971 -- is private or government speech. If it's private speech, Summum is being discriminated against, and it wins. But if it's government speech, Summum loses. (It could also be a hybrid of both governmental and private speech, but I won't go there in this post - and I don't think the Court will need to either.) So anyway, that's what the parties disagree about. Summum conceptualizes the existing Ten Commandments' display as speech of the Eagles; the City emphasizes its own role in approving and maintaining the display.

I think the smart money is on Summum losing, despite their superlative counsel -- the reasons why are perhaps best spelled out in Judge McConnell's dissent from denial of rehearing en banc. It's not that the plaintiffs are wrong, but I don't know if their approach will coincide with that of the Court.

There's a lot to say about Summum. (It will mean a great deal for legislative prayer, and I'll return to that in a bit.) But for right now, I just want to say something about the government-speech doctrine. The rationale behind it -- the reason why government is generally allowed to say what it wants -- lies in the idea of democratic accountability. If you don't like what the government says about, say, beef advertising, you have a remedy. You can vote the relevant government officials out of office. Summum's brief (cited to above) discusses this rationale a bit (see pgs. 37-39 of its brief). It talks about how the City's role in approving displays and the standards it was using were quite opaque. Thus, Summum argues, there's no democratic accountability here, and no justification to give the City the deference provided by the government-speech doctrine. That argument makes a great deal of sense.

But we shouldn't overlook or underestimate how bizarre it is, in general, to apply the government-speech doctrine here. The government-speech doctrine maybe works fine for matters relating to beef, but not so much with matters of religion. Telling Summum that its remedy lies in winning some elections really just leaves Summum without any remedy at all -- it returns Summum to seek redress in the same political process that treated it unequally in the first place. And it is deeply inconsistent with the Court's usual statements about religious liberty -- it turns on its head the Court's famous and longstanding maxim that matters of religion "may not be submitted to vote; they depend on the outcome of no elections." (And there's also the fact that winning elections would probably not do Summum any good anyway -- the existing Ten Commandments display in the city park may be constitutional under Van Orden v. Perry, but their Seven Aphorisms display would likely still be unconstitutional under McCreary County.)

To me, this case illustrates one of the core dangers with allowing the government to speak religiously -- it leads inevitably to a natural and unenviable political fight over what the government's religion will be and who will get to decide the issue. As I'll talk about later, that's exactly what's going on in these legislative prayer cases: Summum is to Van Orden as Pelphrey is to Marsh. But that will have to wait for a subsequent post.