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.