Supreme Court Hears Argument in Religious Monument Case

The Supreme Court heard oral argument on Wednesday, November 12 in an important and highly unusual case raising the issue whether a town can be compelled to display a religious monument in one of its parks. Because JSPAN filed a friend of the court brief in the case, JSPAN board members Ted Mann and Jeff Pasek traveled to Washington to take in the argument first-hand. Summum is a recently created religion. It sued Pleasant Grove City, Utah when the town refused its request to display a permanent monument in the town's Pioneer Park to the "Seven Aphorisms" on which the Summum faith is based. Since 1971, the park has included a massive Ten Commandments monument donated by the Fraternal Order of Eagles more than 35 years ago. Although Summum lost in the federal district court, it prevailed before a three-judge panel of the 10th Circuit. Because the Circuit court had previously ruled in another case that a Ten Commandments monument was not religious speech, Summum brought its claim as a First Amendment, free speech challenge, claiming that the town had created a public forum for the display of monuments and that it could not discriminate against Summum's monument just because it disagreed with the content of its message. To avoid Summum's public forum claim, the town had to argue that the content of the speech on the Ten Commandments monument was no longer private speech, but that it had become government speech the very moment the government assumed control of it. In the JSPAN brief to the court, we argued that no court should ever order government to display a religious monument without analyzing the case under the Establishment Clause, something that the lower courts had never done here. The importance of this issue was brought home less than three minutes into the argument from the first comment made by Chief Justice John Roberts to Jay Sekulow of the American Center for Law and Justice, a religious right organization that represented the town. Chief Justice Roberts observed: "You're really just picking your poison. The more you say that the monument is 'government speech' to get out of the Free Speech Clause, the more you're walking into a trap under the Establishment Clause. What is the government doing supporting the Ten Commandments?" The Chief Justice was not sparing in his questions to Pamela Harris, the lawyer representing Summum: "You have a Statue of Liberty; do we have to have a statue of despotism? Do we have to put any president who wants to be on Mount Rushmore?" Harris also put her finger on the underlying issue when she noted that Pleasant Grove City refused to endorse the message of the Ten Commandments as its own precisely because it wanted to "have it both ways." On one hand, it wanted to sidestep any obligations under Establishment Clause while being able to endorse a religious message it agreed with in the Ten Commandments. In other words, it wanted to prefer one religion over another. JSPAN's solution to the problems created by this case is to tell the lower court that it cannot assume that the Ten Commandments monument is both government speech and immune from examination under the Establishment Clause. Rather than order a second religious monument to be displayed in the park, with who knows how many more to follow, perhaps both monuments should be prohibited to keep government out of the business of endorsing any particular religious message. That analysis was never performed by the lower courts and is essential in a case of this sort. The decision in the case is expected in the spring. To read "A Case of Religious Discrimination", an editorial supporting the JSPAN position, which appeared in The New York Times on November 12, 2008, click here.