The Supreme Court on Wednesday seemed likely to give its blessing to a Utah town that rejected a small religious sect's request to install a monument on public park land, even though the town accepted a Ten Commandments display in the same park 32 years earlier.
Most justices during oral argument Wednesday seemed to oppose the idea that by accepting one, Pleasant Grove City had to accept the other because of the First Amendment's bar against content-based speech discrimination by the government.
"You have a Statue of Liberty; do we have to have a statue of despotism?" Chief Justice John Roberts Jr. asked. "Or do we have to put any president who wants to be on Mount Rushmore?"
In the same vein, Justice Antonin Scalia wondered aloud if a city that allows any kind of memorial on public land would have to also permit "a monument to chocolate chip cookies" if a resident proposed it.
But during oral arguments in the case Pleasant Grove City, Utah v. Summum, several justices also expressed discontent with the Court's own First Amendment doctrines that make the Utah case so difficult to resolve. The 10th U.S. Circuit Court of Appeals had ruled that the Summum memorial had to be accepted, because the park was a public forum where such discrimination is not allowed under the Court's First Amendment rulings.
Under Court precedent it also appears that the only way a municipality could say yes to the Ten Commandments display and no to the Summum group's "Seven Aphorisms" monument is to define the Ten Commandments memorial as a form of speech by the city government, rather than private religious speech. The Court has ruled that when the government speaks it can pick and choose its messages, adopting some and rejecting others.
Jay Sekulow, chief counsel of the American Center for Law and Justice, arguing for Pleasant Grove City, told the justices that monuments in the city's park "have been selected by the government, are owned by the government, controlled by the government, and are displayed on government property. When the government is speaking, it is free from the traditional free speech constraints of the First Amendment."
Even that rule was questioned. Deputy Solicitor General Daryl Joseffer, arguing in support of the Utah city, said that because of the government speech doctrine, "the Vietnam Veterans Memorial did not open us up to a Viet Cong memorial." In the same way that a library or a museum curator can select some works and not others, so can the government pick which events or beliefs to commemorate.
But Justices Samuel Alito Jr. and John Paul Stevens asked whether that level of government discretion also means that in the case of the Vietnam Veterans memorial, the government could choose to exclude the names of veterans who espoused views the government did not like, or who were homosexuals. With apparent reluctance, Joseffer said those names could be excluded under First Amendment principles, though he said there could be equal protection or due process issues.
Sekulow's insistence on the "government speech" position also prompted some justices to warn him that if in fact the government was speaking when it favored the Ten Commandments over the Summum display, it could be in violation of the establishment clause of the First Amendment, which has been interpreted to bar government endorsement of one religion over another.
"It seems to me you're walking into a trap under the establishment clause," Roberts told Sekulow. "If it's government speech, it may not present a free-speech problem, but what is the government doing speaking, supporting the Ten Commandments?"
Sekulow noted that no establishment clause claim had been raised in Summum's initial challenge to the city's action. But several briefs filed in the case asserted that such a claim was precluded by 10th Circuit precedent.
"This case is an example of the tyranny of labels," said Justice Anthony Kennedy, a potential swing vote in the case. He was objecting to another set of First Amendment principles involved in the case -- whether public park land, usually viewed as the classic public forum where all speakers are allowed, can be categorized as a nonpublic forum when it comes to placement of permanent monuments in limited public spaces.
Pamela Harris, of counsel at O'Melveny & Myers, insisted on behalf of the Summum sect that in a public forum "the government may not favor one message over another."
But when justices asked how cities, practically speaking, could be selective in which memorials it would allow, Harris said there was a simple option. She said governments could formally "adopt any existing monuments as government speech" and announce that, henceforth, "these parks are available only to government displays."
Justices wrestled with Harris' proposal, with Justice Antonin Scalia stating, "Ms. Harris, we need a clear rule here." Scalia suggested it would be impractical for cities to investigate and adopt all the memorials on public lands.
"It may be a very nice world," said Scalia, "but it happens not to be the world under which our Constitution has subjected this country." by law.com