Pleasant Grove City v. Summum: It Was Contentious, as Expected

The Supreme Court's decision on Pleasant Grove City v. Summum is too close to call, and it may come down to the wavering Justice Anthony Kennedy once again, to judge by this Bloomberg News Service account of oral arguments Nov. 12.

A transcript of the arguments in .pdf form is linked in the Legal Documents blogroll at left, under "Pleasant Grove City v. Summum." Here is the Bloomberg account.

Bloomberg - Religious Displays in Parks Divide U.S. Supreme Court Justices
November 12, 2008
By Greg Stohr, Bloomberg

U.S. Supreme Court justices clashed over a Utah town's decision to allow a Ten Commandments monument in a public park, as they weighed a bid by [Summum] to erect its own display.

The justices today heard arguments on a federal appeals court ruling that said the town of Pleasant Grove must give equal access to Summum, [ wants to display its "seven aphorisms."

That prospect had several justices voicing concern about a free-for-all in public parks and museums. Among them were Chief Justice John Roberts, who asked whether the government would have to balance the message conveyed by the Statute of Liberty.

"Do we have to have a Statue of Despotism?" Roberts asked. "Or do we have to put any president who wants to be on Mount Rushmore?"

On the other side were justices who said they worried about giving the government unfettered discretion over the messages displayed on public property. Justice John Paul Stevens asked whether the government could "decide not to put up the names of any homosexual soldiers" on the Vietnam Memorial in Washington.

The Supreme Court in 2005 said governments can post the Ten Commandments on public property as part of a broader display of historical or moral symbols. That case centered on the Constitution's establishment clause and the limits it places on government support for religion in the public square.

In the latest case, Summum opted not to invoke the establishment clause to seek removal of the Ten Commandments display. The group instead pointed to the Constitution's free-speech guarantee, saying the town must give equal access to other religions and viewpoints in the park.

'Public Forum'

A federal appeals court in Denver said Pleasant Grove had created a "public forum" in the park and generally would have to give all groups an equal right to erect monuments.

Pleasant Grove contends that its monument is exempt from the equal-access requirement because the display is a form of government speech, not private expression. The Fraternal Order of Eagles gave the city the Ten Commandments monument in 1971.

Summum's lawyers say the monument doesn't qualify as government speech because the town never formally adopted the message on the monument as its own.

Though not directly at issue in the case, the establishment clause question lurked close to the surface in today's argument. Roberts said a declaration that the Pleasant Grove monument was government speech would make it harder for the city to argue that it wasn't favoring one religion over another.

"You're really just picking your poison, aren't you?" he asked the town's lawyer, Jay Sekulow.

Establishment Clause

Justice David Souter said a high court ruling forcing the city to adopt the Ten Commandments message as its own would be fatal to the town's defense under the establishment clause.

"Isn't that what is driving this?" he asked Summum's lawyer, Pamela Harris.

Harris said the city was trying to avoid having to formally subscribe to the particular version of the Ten Commandments on the park monument. She said the town "wants to have it both ways."

Sekulow likened the city's role to that of a "museum curator" who selects which exhibits to display. Bush administration lawyer Daryl Joseffer made similar arguments in support of the city.

They drew their strongest support from Justice Antonin Scalia. "You can't run a museum if you have to accept everything, right?" Scalia said.

Ginsburg Comments

Ruth Bader Ginsburg joined Souter in suggesting the Ten Commandments display violated the establishment clause. She later said she wasn't aware of "any tradition" of allowing groups to erect monuments on free-speech grounds.

Several justices signaled they were torn by the case and were looking for a way to limit any unintended consequences from the court's ruling.

"Do we have to decide this case that it's all or nothing?" Justice Anthony Kennedy asked.

The Ten Commandments depict the rules that Jews and Christians believe God handed down to Moses on Mount Sinai. Summum, a Salt Lake City-based church founded in 1975, says its aphorisms came from an earlier set of tablets that Moses brought down from the mountain and then destroyed in anger.

The Summum aphorisms include "the principle of psychokinesis" and "the principle of correspondence."

The court will issue a ruling by July.