Chalk One Up For the Good Guys

Counsel for a cynical anti-Christian group probably knew they were in trouble when the small Utah town they were bullying, Pleasant Grove City, fought back by putting the varsity on the court - conservative Constitutional litigator Jay Sekulow, chief counsel of the American Center for Law and Justice.

Sekulow argued the case before the Supreme Court in November after "mooting" it before the legal profession's equivalent of focus groups at Regent University and elsewhere. In a rare unanimous decision, the Court held that the small Utah town could harbor a monument to the Ten Commandments in its town square without violating the Establishment Clause of the U.S. Constitution, and that it does not thereby obligate itself to provide equal prominence to insipid, sarcastic monuments of the sort proposed by the Summa bullies.

Washington Post - City Can Reject Religious Display; Supreme Court Backs Utah Officials
February 26, 2009
By Robert Barnes, Washington Post Staff Writer

The Supreme Court yesterday unanimously agreed that permanent monuments in public parks are a form of government speech and that a small town in Utah was within its rights to reject an offer from a little-known religious group to have its "Seven Aphorisms" placed next to the Ten Commandments.

In a decision closely watched by government officials across the nation, the justices said officials in Pleasant Grove, Utah, did not violate the First Amendment rights of the Summum religious order by rejecting its monument.

Permanent monuments in city parks, Justice Samuel A. Alito Jr. wrote for the court, are erected "for the purpose of presenting the image of the City that it wishes to project to all who frequent the park," and thus governments can decide for themselves which to erect, which to accept from others and which to turn down.

"It's a landmark decision that clears the way for government to express its views and its history through the selection of monuments -- including religious monuments and displays," said Jay A. Sekulow of the conservative American Center for Law and Justice, which argued the case for Pleasant Grove.

Summum had contended -- and an appeals court had agreed -- that the city park was a forum for public speech. The First Amendment's free-speech clause meant that city leaders could not accept a version of speech with which they agreed and reject one with which they did not, the group's lawyers said.

But Alito said the analogy was wrong.

"A public park, over the years, can provide a soapbox for a very large number of orators -- often, for all who want to speak -- but it is hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression," he wrote.

The unified decision stood in contrast to the court's splits when it has considered public displays of the Ten Commandments in the context of the First Amendment's establishment clause, which prohibits government endorsement of religion.

In 2005, the court allowed such a display on the grounds of the Texas Capitol because of its historic placement among other monuments. But it disallowed the Ten Commandments in a Kentucky courthouse because the court said the display was meant to convey a religious message.

Alito and Chief Justice John G. Roberts Jr. have joined the court since those decisions, and the justices announced this week that they will hear a new establishment clause challenge in a case involving an eight-foot cross that has stood for more than 70 years in the Mojave National Preserve in California.

Pleasant Grove's 2.5-acre Pioneer Park has about 15 permanent displays, most of them donated by civic groups, including a granary, a wishing well, the city's first fire station and the Ten Commandments monument, which was donated by the Fraternal Order of Eagles in 1971.

In 2003, Summum, a Salt Lake City-based religion formed in 1975, sought permission to put its monument to the Seven Aphorisms there as well. Summum's name is drawn from a Latin term meaning "the sum of all," and the group's philosophy combines elements of Gnostic Christianity with Egyptian themes.

It teaches that the aphorisms --"Nothing rests; everything moves; everything vibrates," says the Principle of Vibration -- were on the stone tablets dictated by God to Moses along with the Ten Commandments but were revealed to only a small group of people.

When the city refused Summum's offer, the group successfully appealed to the U.S. Court of Appeals for the 10th Circuit.

In his opinion reversing that decision, Alito warned that "this does not mean that there are no restraints on government speech," noting that it must "comport with the Establishment Clause." And he said governments must not use the cover of government speech as "a subterfuge for favoring certain private speakers over others based on viewpoint."

But he said governments that, for instance, erect memorials to war dead need not "provide equal treatment for a donated monument questioning the cause for which the veterans fought."

And he said monuments may not always be clear on what the government's message is. The "Imagine" memorial to John Lennon in New York's Central Park may cause some to wonder about the contributions Lennon might have made if he had not been murdered, Alito wrote, and others to contemplate the song's lyrics, which Alito provided in a footnote.

While the decision about Pleasant Grove was unanimous, six justices weighed in to elaborate in concurring opinions.

Justice David H. Souter said he agreed with the decision. But he said that if a government accepts a monument with "some religious character, the specter of violating the Establishment Clause will behoove it to take care to avoid the appearance of a flat-out establishment of religion."

Brian Barnard, a lawyer for Summum, said that would be the church's next legal fight. But he acknowledged that a decision that said Pleasant Grove officials violated the establishment clause by adopting the Ten Commandments as government speech could just as likely lead the city to remove the current monument rather than add the aphorisms. That has been the case in other Utah jurisdictions where the group has brought lawsuits.

Justice Antonin Scalia, joined in a concurring opinion by Justice Clarence Thomas, suggested that Summum would not be successful in pursuing an establishment clause argument and said the case was similar to the one involving the Texas Capitol.

He said Pleasant Grove need not worry about breaching the "so-called" wall of separation between church and state.

"The city can safely exhale," Scalia wrote. "Its residents and visitors can now return to enjoying Pioneer Park's wishing well, its historic granary -- and, yes, even its Ten Commandments monument -- without fear that they are complicit in an establishment of religion."

The case is Pleasant Grove City v. Summum.

Regent Law Student's Account of Supreme Court Oral Arguments

Regent Law student Leandra Rayford wrote this first-person account after returning from watching American Center for Law and Justice chief counsel Jay Sekulow argue Pleasant Grove City vs. Summum last week. Sekulow is an adjunct professor at Regent, where Rayford is one of his students. She worked at the ACLJ last summer, and had a piece of the early research that Sekulow relied on. Here is Leandra's story:

Pleasant Grove Oral Arguments at the Supreme Court
Wednesday, November 12, 2008

Today I had one of the greatest experiences--if not the greatest-- of my law school career: I went to hear oral arguments at the Supreme Court of the United States on the case Pleasant Grove City v. Summum. This summer when I was given the opportunity to work at the American Center for Law and Justice and do research on monuments throughout the country, I don't think I really comprehended what preparation for a Supreme Court argument entails. However, even though I stopped working for the ACLJ once school started, I have been enrolled in a class that has been following Dr. Sekulow's preparation for oral arguments.


A couple of weeks ago, our class (about 30 students, I think) gave Dr. Sekulow a moot court session where for two hours we asked him questions about the facts, legal analysis, and hypotheticals. He had previously done a 6 hour moot court with a different group. Having traveled and done moot courts in different areas, he engaged in two more moot court sessions at Regent, where he not only practiced his answers, but also the etiquette of the court: yielding to a justice who is speaking, knowing which justice to address and answer first when multiple are talking at once, asking permission to continue answers, etc.


Yesterday, those of us in the class (plus a few others) went up on a bus to D.C., stayed the night in a hotel a few blocks from the Supreme Court, and then (when our bus failed to show up) walked to the Supreme Court at 5 am to stand in line for tickets to get in and hear the oral arguments. Not only students in the class were there, but also students who clerked (like me) this summer for the ACLJ. For four hours, we endured the biting cold of the fall morning and stood outside in line, as bundled up as possible. Then... they started letting us in, but a horrible thing happened-- not everyone in our class got in to the building. Apparently there more more seats reserved than anticipated, and also some people who were connected to Regent in some way (such as graduates or spouses) showed up and were before students in line. Also, there were a few people not connected to the school interspersed with the students.


I was looking back at some of my friends wondering what they were going to do, and when I was seated in the courtroom (and this says a lot for his character to me), Dr. Sekulow asked if all the students got in, because he was actually thinking about his students and not just his argument. When I responded "no, sir" he was upset and tried to figure out what happened; the simple fact was that there were too many people!


At 10 am I was slightly puzzled that the justices had not yet appeared. I was told the Supreme Court was very prompt, so I looked back and forth at the two large courthouse clocks (the room is amazing, by the way, with large friezes around the room of historical law givers and a ceiling that reminded me of Rome). At 10:02, the police officers indicated that we should rise just as the Chief Justice walked into the courthouse. It was time for the fun to begin. :)


In all honestly, I'm not quite sure what happened for the first 7 minutes or so. I'm pretty sure that an opinion was read by the Court for a case, but I don't know what the case was about and I was somewhat shaking-- both from trying to get warm and nerves. Then, another really cool thing happened: we got to see people being admitted to the Bar of the Supreme Court. After a few others, Dr. Sekulow made a motion that the court accept Regent professors Darius Davenport, Scott Pryor, and Lynn Kohm into the bar, as well as others. Then, all those admitted were sworn in.


Finally, Chief Justice Roberts called the case, and Dr. Sekulow began his argument. He got through about 44 seconds before any questions started from the court, and I was surprised at how long he had to answer questions about the Establishment Clause (an estimated 5 minutes). He also quoted pages of text, which I was amazed at--once again-- that he could do just off the top of his head. What was almost comical was to hear how fast he talked in trying to get his point across, only to have the pace of the argument slowed substantially by a justice asking a question.

Thinking about it now, I do laugh because he would be on a roll answering a question, and then Justice Ginsburg would cut in with a question that it seemed she would never finish because it took so long to ask. Also, Justice Souter (I think it was him) seemed to ask a ton of questions at one point on government speech, and I was definitely proud of how moot courts had gone at Regent as some of the questions he had were similar to those that came up, which meant I knew Dr. Sekulow had a prepared answer. It seemed that his argument went on for a very long time, and it turns out I was correct; while he had talked about possibly reserving 10 minutes for rebuttal, he only reserved two!!

The next person to present (for Pleasant Grove) did so on behalf of the government. He got through about 12 seconds, I think, before asking a question, and talked noticeably slower than Dr. Sekulow. Though I can't remember the certain phrase he used, he seemed to have a theme to his argument because I remember noticing that he said the exact same sentence multiple times as answers to different questions. I couldn't tell if he was just trying to drive it home, or if he kept saying it because he was trying to justify it in different ways if the justices did not agree.

Finally came the attorney for Summum. She got out a whopping nine seconds of speech before her opening statement was cut off with a question. I honestly don't remember much of her argument because it did not make much sense to me, and apparently I was not alone in that as a justice commented that he did not understand what she was saying. I do remember her saying that she believed a city could only adopt a monument by doing so formally and in writing stipulating such. She also got many hypotheticals; Justice Scalia definitely asked her a ton of questions. The attorney backed herself into a corner and finally conceded that one of his examples would be government speech (although to keep her point, she shouldn't have agreed with him).

In rebuttal, one of the things I noticed was a lack of an example which ran through all of our moot court sessions-- Fred Phelps and his church wanting to put up monuments. However, Dr. Sekulow told us later that he did so on the spur of the moment, choosing instead to use that with a 9/11 monument such as the park has, under the current 10th Circuit ruling, a person would have to also be allowed to put up an Al Qaeda monument.

Overall, hearing the oral arguments was an amazing experience. Then, at a reception at the ACLJ, I met the current mayor of Pleasant Grove City. Suddenly all my work from this summer and even in the class had a face to it; before it was just a city some place in Utah, even though I read the depositions of citizens and the mayor. Meeting the mayor somehow also gave me more of a sense of urgency regarding the case, because, as he said "it's [his] case, and all [he] can do is show up and watch and wait."

So now we all wait... The Supreme Court will release its decision sometime before the end of the term, and that's really all we know. The arguments were phenomenal, the experience was once-in-a-lifetime, and once again I feel blessed to be a part of Regent Law School.

Pray for Jay, November 12

Constitutional litigator Jay Sekulow will argue Pleasant Grove City v. Summum before the U.S. Supreme Court tomorrow.

Sekulow, Chief Counsel of the American Center for Law & Justice (ACLJ), will argue on behalf of Pleasant Grove City, Utah. The case centers on a distinction between government speech and private speech.

A three-judge federal appeals court panel ruled in favor of a group called Summum to erect its own monument of "Seven Aphorisms" in a city park in Pleasant Grove, the site of a long-standing display of the Ten Commandments donated to the city decades ago. When the full appeals court convened en banc to rehear the case, it split 6-6 and decided not to try again. This left the three-judge panel's decision undisturbed.

The ACLJ asked the Supreme Court to take the case and overturn the lower court decision that private parties have a First Amendment right to put up the monuments of their choosing in a city park, unless the city takes away all other donated monuments. Sekulow argues that the appellate panel's ruling runs counter to well-established precedent that the government has to be neutral toward private speech, but it does not have to be neutral in its own speech.

"In short, accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny." Unless reversed, the Tenth Circuit ruling will "force local governments to remove long-standing and well established patriotic, religious and historical displays."

Sekulow rehearsed his arguments under the pressure of a "moot court" at Regent University's School of Law Friday afternoon. The Supreme Court will hear oral arguments tomorrow, November 12.

Sekulow Will Argue 10 Commandments Case Before U.S. Supreme Court

American Center for Law and Justice Chief Counsel Jay Sekulow will argue Pleasant Grove City v. Summum before the U.S. Supreme Court next month. ACLJ attorneys have already submitted a series of legal briefs in the case about the right of government entities to display the Ten Commandments and to commemorate other civic virtues, heroism and aspirations without being obligated to give equal time and space to contrary opinions.

A three-judge federal appeals panel ordered Pleasant Grove City, Utah, to make equal space available in a city park for Summum's "The Seven Aphorisms" in response to a donated Ten Commandments display. When the appeals court met en banc to reconsider the panel's ruling, it split 6-6 and turned down a request to re-hear the dispute. The U.S. Supreme Court then granted certiorari, and has scheduled oral arguments for Nov. 12.

ACLJ briefs have argued that the appeals court's decision, if left standing, would obligate governments to accept a Hitler monument in response to WWII monuments, and a Statue of Tyranny in response to the Statue of Liberty.

An archive of briefs and news articles about the case is accessible on ACLJ's website at http://www.aclj.org/Cases/default.aspx?Section=120.