Thursday, February 26, 2009

Supreme Court says park monument is government speech

The Supremes are back in town, and this session is already looking interesting. Yesterday's unanimous decision in Pleasant Grove City, Utah v. Summum (slip opinion here) held that a government may accept certain permanent religious monuments in public parks without violating the Free Speech rights of other groups who were not permitted to place similar monuments in the park. The city of Pleasant Grove already had a donated Ten Commandments monument in its Pioneer Park but it had refused to place a similar monument from a small religious group named Summum. (More background here.) Justice Alito's majority opinion overruled two separate 10th Circuit decisions by holding that such monuments are "a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause."As SCOTUSblog noted, there were several concurring opinions, so Justice Alito's decision may not be concrete law, but this seems to be the direction in which the Court is moving.

I think it is interesting to compare Pleasant Grove with the 1995 case Capitol Square Review Board v. Pinette, where the State of Ohio had set up an area on the Ohio Capitol grounds where any group could display their poltiical or religious beliefs. The KKK wanted to put up a huge white cross and the Ohio government balked. Representatives of the KKK filed suit to force the Ohio government to let them put up the cross and won. This decision was affirmed by the Sixth Circuit and the Supreme Court on Establishment Clause grounds. Justice Scalia's majority opinion held that the Capitol grounds were a traditional public forum, and that the speech was permissible as long as the restrictions placed on the speech were content-neutral. Since this was clearly a content-based exclusion it was not permitted. 

Clearly, the nature of these two arenas made the difference in the outcomes. Whereas the posters and displays on the Ohio Capitol square were speech by other groups in a traditional public forum, the public park monuments were fundamentally different enough for the justices to declare them government speech. It is also important to note that this case was not decided on Establishment Clause grounds, although that may be where the case is headed.

In the background of this discussion is the fact that most of the city of Pleasant Grove is Mormon. That isn't central to the First Amendment analysis, but the parties mentioned it in a NY Times article last year:
The Ten Commandments monument here stands in Pioneer Park, which pays tribute to the city’s frontier heritage, one that is mostly Mormon. The two sides differ about how best to honor that heritage.

[Pleasant Grove Mayor Michael] Daniels said the monument broadly reflected local history. Mr. Barnard, the Summum lawyer, said the Ten Commandments did not play a central role in the Mormon faith. “If they wanted to quote from the Book of Mormon,” he said, “that would, at least, relate to the pioneers.”

“Mormons came to Utah because of religious persecution,” Mr. Barnard added. “The pioneer heritage in Utah has to be escape from persecution.” 
I was amused by the idea that the Ten Commandments do not play a central role in the Mormon faith -- I think the LDS Church and most of its members would refute that assertion. The reason commonly given for Ten Commandment monuments on government property is that those principles are central to the Judeo-Christian tradition out of which the Anglo-American legal system was formed. You probably couldn't say the same about the Book of Mormon, even in Utah. I know there were court systems run by the Mormon Church in the early Deseret Territory days, but I don't know of any legal legacy remaining in the Utah State courts.


  1. 50% of the Nevada Federal Judges are LDS in a State that is only 7% Mormon. It appears that at least 35% of our District courts are also church-driven. The stats in Utah and Idaho are equally grim. The ability of Mormons to deny provable facts by saying something like "I know there were court systems run by the Mormon Church in the early Deseret Territory days, but I don't know of any legal legacy remaining in the Utah State courts" flies in the face of collected Mormon articles applauding allthe Mormon judges. Somehow I don't think this comment will be allowed on the site. I am working to expose th legal toxicity in our courts with news entities who are financially free of Mormon influence.

  2. I think the comment should remain, but I don't understand to what you refer by "th[e] legal toxicity in our courts with news entities who are financially free of Mormon influence." My original post referred to Brian Barnard's comment and any potential legal jurisprudence derived from religious sources, not the religious practices of individual jurists.

  3. My wife and I would be more then willing to hear from the Anonymous comment maker. Our minor son age 3.5 years old at the time was illegall and unconstitutionally taen away from us by two LDS Mormon judges in Gooding county, Idaho, for simply taking our son to a licensed M.D. in March of 2008. We are fighting to this very minute to get the State of Idaho to return ligal custody to us, and have taken this matter to the U. S. Federal District Court, Boise, Idaho ( the highest U.S. Federal District Court judge, b.Lynn Winmill ( an LDS Mormon judge has denied to hear the matter. The states need to throw out all governmental officials that allow their religeous beliefs to take the place of State and Federal Constitutional rights.

  4. I'm sorry to the anonymous commenter who had your son taken away but there must be more to the situation then just taking him to see a physician.