Hear Ye! Hear Ye! JSPAN Files Its First United States Supreme Court Brief!

JSPAN's Church-State Policy Center has filed six "Amicus" (Friend of the Court) briefs over the past two years, the last one just two weeks ago in a case called Pleasant Grove City v. Summum. This one was of great significance to JSPAN, not only because it was our first such brief filed in a case pending before the United States Supreme Court, but also because the JCPA ("Jewish Council for Public Affairs"), after studying our brief, joined in it on behalf of the 14 national Jewish organizations and 127 Jewish communities in America whose social justice activities it coordinates. Boston-based JALSA ("Jewish Alliance for Law and Social Action") joined in it as well. This is a major coup for JSPAN, and we owe our thanks to Alan Garfield, Seth Kreimer and Ted Mann for their work on the brief. This is an extremely difficult case and they managed to make our arguments in a very succinct manner. By way of background, the case arose in Pleasant Grove City, Utah, where Pioneer Park contains 15 permanent displays, including 11 that were donated to the City by private groups. One of these is a Ten Commandments monument that was donated by the Fraternal Order of Eagles. Summum, the plaintiff in the case, is a private religious organization that asked the city to display a stone monument, similar in size and nature to the Ten Commandments monument, containing the "seven aphorisms" of the Summum faith. When the city refused, Summum sued, alleging that the refusal of the city to permit installation of the proposed monument violated the Free Speech Clause of the United States Constitution as well as provisions of the Utah Constitution. The trial court denied the request, but a panel of the Tenth Circuit reversed and remanded the case with instructions to enter a preliminary injunction in favor of Summum. Characterizing the earlier Ten Commandments monument as private speech, the Court of Appeals then determined that the city had created in the park a traditional public forum for the erection of monuments. Thus, it could not deny Summum the right to erect its monument based on content-based restrictions that were unlikely to pass strict scrutiny usually reserved for limits on free speech rights. The full court denied rehearing by an equally divided vote. The city was represented in the Supreme Court by Jay Sekulow and the American Center for Law and Justice (ACLJ), a legal arm created in 1990 by Christian broadcaster Pat Robertson. Normally, JSPAN would find itself on the other side of the ACLJ, but in this case we filed a brief in support of Pleasant Grove City. JSPAN argued that the characterization of parks as public forums for the erection of permanent monuments was erroneous and has unsettling implications. For example, we noted that if a city displays a Holocaust memorial in a park, it could be compelled to allow a display glorifying the Nazis. We also challenged the conclusion that the Ten Commandment monument remained "private speech" even after it had been accepted by the city. Because the city chose whether to accept the donation, and then decided whether, where and how to display it, as well as whether to alter its message, the city converted the private speech into government speech. Our brief then went on to address an issue that was not addressed by the ACLJ, namely the significant Establishment Clause issues raised by this case. We argued that Free Speech does not include the right to place a permanent monument on public property, and that whenever such a monument has religious connotations the constitutionality of placing it on public property must be analyzed and determined under the First Amendment's Establishment Clause, not its Free Speech Clause. As a consequence of the Court of Appeal's decision, the city was placed in the position of having to display a second monument containing a religious message without any court ever passing on whether either one violated the Establishment Clause prohibition on government endorsement of religion in general or one religion over another. In the discussions leading up to our decision to file an amicus brief, we concluded that it is not in the interest of the Jewish community for America's municipal parks to become places in which all religions - there are, for example, literally hundreds of Protestant sects - will have a legal right to permanently install their religious monuments. We therefore urged the Supreme Court to issue an order reversing the Court of Appeals and instructing the lower courts that they should never mandate or authorize the erection or display on government property of a monument with religious content without a rigorous Establishment Clause analysis, regardless of whether the monument is owned, erected or maintained by the government or a private party. To read the JSPAN brief in its entirety, click here.