Supreme Court Decides Religious Monument Case

It's unanimous: Pleasant Grove City, Utah is not required to display a monument in a city park donated by "a tiny religious sect" -- even though the park displays a monument to the Ten Commandments, a religious symbol endorsed by a much larger religious sect. Despite the skepticism expressed in this post about Pleasant Grove's apparent endorsement of one religious viewpoint to the exclusion of others, the Supreme Court analyzed the case under the Free Speech Clause rather than the Establishment Clause (that's how the case was argued to the Court) and concluded that the case was about Pleasant Grove's right to express itself by selecting which monuments to display in a public park.

“The Free Speech Clause restricts government regulation of private speech,” Justice Alito noted. “It does not regulate government speech.”

[more ...]

This passage from Justice Alito's majority opinion (pdf) is not particularly reassuring:

This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause.

Precisely. But how does Pleasant Grove's decision to display the Ten Commandments without displaying monuments to competing religions comport with the Establishment Clause?

Justice Stevens' concurring opinion also sidesteps the issue.

For even if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution’s other proscriptions, including those supplied by the Establishment and Equal Protection Clauses. Together with the checks imposed by our democratic processes, these constitutional safeguards ensure that the effect of today’s decision will be limited.

Telling us that Pleasant Grove is "bound by" the Establishment Clause doesn't explain why Pleasant Grove isn't violating that Clause by giving preference to certain religious monuments over others. And relying on the safeguards of democracy offers little comfort to adherents of a minority religion. How many voters will want to throw the bums out of office who preferred the Ten Commandments to the Seven Aphorisms of the Summum religion?

Justice Scalia (who does not lack for boldness) boldly stepped into the Establishment Clause debate in his concurring opinion. Joined only by Justice Thomas, the opinion argues that the Ten Commandments are of "historical" importance, as is the monument itself, given that it has been on display for 40 years. It is true that the Seven Aphorisms of the Summum religion are not as old as the Ten Commandments, but does that make the Seven Aphorisms historically unimportant? And since no monument to another religion will be tolerated in Pleasant Grove's parks, none will have a chance to stand for 40 years. The fact that municipal intolerance to religious diversity has existed for 40 years hardly seems a justification to continue that intolerance.

Justice Souter's concurring opinion acknowledges that the question is not so easily answered:

The interaction between the “government speech doctrine” and Establishment Clause principles has not, however, begun to be worked out.

Justice Souter's more nuanced view provides hope that future decisions will not give a blind pass to governmental speech that favors some religions over others.

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    Wow (5.00 / 2) (#2)
    by eric on Wed Feb 25, 2009 at 04:46:41 PM EST
    I would have put money on this coming out the other way.  It seems so obvious to me.  But this case is odd now that I read it.  It is more about forcing this city to display the Summon monument than analyzing why the Commandments shouldn't be displayed.  Souter's concurrence really hits it on the head, I think.

    exactly. (none / 0) (#29)
    by coigue on Wed Feb 25, 2009 at 10:23:07 PM EST
    The case was not about whether the 10 commandments should be displayed.

    Freedom FROM Religion (5.00 / 1) (#8)
    by MyLeftMind on Wed Feb 25, 2009 at 06:10:21 PM EST
    Too many Christians use their religion to bang others over the head.  Christianity is responsible for millions of deaths in the world, including massive genocide of other earlier European cultures. Today, Christians routinely attack progressive policies in our schools and government and try to force other Americans to pay for their religious activities. Today was a good decision, but if we can't win in the courts, then we should enact laws to solidify the separation of church and state.

    Removing Christian symbolism from the schools and public places is not censorship, nor is it contrary to our founders goals.  I can accept others believing in big daddy up in the sky, but I don't want my kids inundated with bizarre religious philosophies.  When you allow one religion to put their symbols onto shared public resources, you end up feeding their egotistical drive to force everyone to accommodate and accept them. Many Christians scream, "In God We Trust is on our dollar bill, that proves we're a Christian nation.  I'm sick of that tired, intellectually bankrupt argument that our founders were Christian so now we should enact policies that reflect (their version of ) Christian ideas, such as denying gays marriage equality or blocking women's access to birth control and family planning.  Some of our founders were slaveholders too.  Should we hold that up as a reason why we should all now support slavery?  

    If Christians weren't so politically aggressive, we wouldn't have to protect ourselves and from them. Californians just passed Prop 8 primarily because lousy Christians want to promote their religion and hurt gay and lesbian citizens. The Catholic and Mormon churches subverted the election process and used their tax free donations to attack civil rights. With some religions, you give them an inch, and they take your rights away.  

    God, protect us from your followers!

    After googling H. L. Mencken (none / 0) (#12)
    by oculus on Wed Feb 25, 2009 at 06:46:08 PM EST
    this a.m., I learned he had much to say about Christianity, including the query:  how effective would Jesus have been if he had lived to be, say 60 years old?  Mencken thinks Jesus was only effective because he died so soon after he attained public notice, and because the religion only works if the end is imminent.  Too hard to carry out long term.

    He Could Have Been Discovered (none / 0) (#13)
    by squeaky on Wed Feb 25, 2009 at 06:47:49 PM EST
    Late, perhaps as a 40 year old.

    Stop the presses... (none / 0) (#1)
    by magster on Wed Feb 25, 2009 at 04:41:35 PM EST
    Thomas joined an opinion written by Scalia?!!

    As for the case itself, this is a case that demonstrates the difficulty of First Amendment issues.  Adam B wrote a nice diary on this decision at Kos, too.

    Another View (none / 0) (#3)
    by squeaky on Wed Feb 25, 2009 at 05:14:27 PM EST
    But Summum attorney Brian Barnard said the U.S. Supreme Court's ruling Wednesday opens the door to a new constitutional challenge as the case returns to U.S. District Court in Salt Lake City.

    "It's like they are handing it to me on a silver platter," said Barnard, who intends to amend the lawsuit, adding church-state separation claims.

    Likewise, the American Humanist Association cheered the court's decision, saying it provides a path to getting all Ten Commandments monuments off public property in America.

    Salt Lake Tribune

    Is Mr. Barnard saying he didn't (5.00 / 2) (#4)
    by oculus on Wed Feb 25, 2009 at 05:18:48 PM EST
    think of the Establishment Clause when he drafted the initial complaint?  Is he competent?  Sounds like his client wanted an addition to the display, not a deletion.

    This (none / 0) (#5)
    by squeaky on Wed Feb 25, 2009 at 05:39:32 PM EST
    The interaction between the "government speech doctrine" and Establishment Clause principles has not, however, begun to be worked out.

    Isn't it usual for the court to decide against a case while implying or instructing the defense how to mount a case that could win?

    If Souter can say that Establishment clause principals has not begun to be worked out, I assume that Barnard's approach is no worse than anyone else would have been.

    Why would you think him incompetent?



    If he could have pleaded it (none / 0) (#6)
    by oculus on Wed Feb 25, 2009 at 05:44:15 PM EST
    initially and didn't and new claim is time-barred, he made a mistake.

    Or (none / 0) (#7)
    by squeaky on Wed Feb 25, 2009 at 06:03:11 PM EST
    He took the path which seemed to have good case law supporting it and backed away from uncharted territory.

    I have not read much criticism of the lawyer, so I am not sure why you would think him incompetent after the fact.

    Perhaps Barnard made his choice of attack based on this:

    Scalia recalled that, three years ago, the Court had upheld against an establishment challenge the placement of a Ten Commandments monument on the grounds of Texas' state capitol.   "There is little basis to distinguish the monument in this case," the Justice wrote.  "The city can safely exhale."

    scotus blog


    Or maybe (5.00 / 1) (#20)
    by eric on Wed Feb 25, 2009 at 07:49:44 PM EST
    THIS is his website and he doesn't have a clue.  Everyone here immediately identified the best argument, and he didn't even use it.

    Saw That (none / 0) (#23)
    by squeaky on Wed Feb 25, 2009 at 08:34:58 PM EST
    IANAL, and it follows that I don't have the skills to determine whether or not Barnard is incompetent as oculus suggests. And am not into jumping on the bandwagon because some here have decided that he would have obviously won had he argued the case in a different way. I think that is wishful thinking.

    And if you think his website is some sort of indictment, well we part company on that.

    Scotus blog et al say this case is not over. We'll see.


    The case was argued in SCOTUS (5.00 / 2) (#24)
    by Peter G on Wed Feb 25, 2009 at 09:09:44 PM EST
    not by a Utah divorce lawyer, but by Pamela Harris, an outstanding appellate advocate who helps lead the Harvard Law School Supreme Court Litigation Clinic.  My guess is that the strategy of the case was to get the City to embrace the 10-Commandments monument's "message" as "governmental speech" in order to defeat Summum's equal-access "public forum" Free Speech argument ... for the precise purpose of backing them into a corner under the Establishment Clause.  If so, then Summum, by losing, got what they really wanted.  I see this approach as almost "throwing" the case (a "Breyer patch" strategy, shall we say?) for the larger goal, which comes next.  Just a guess, however.

    Really? I don't know much about it (none / 0) (#30)
    by coigue on Wed Feb 25, 2009 at 10:27:24 PM EST
    but a strategy that requires two bites of the SCOTUS apple seems pretty flawed.

    Second bite (none / 0) (#35)
    by Peter G on Wed Feb 25, 2009 at 10:37:35 PM EST
    doesn't have to be in the Supreme Court.  (Nor did the first; it just worked out that way.) If today's S.Ct. ruling is the set-up, then the Establishment Clause win (under the Kentucky 10-Comm precedent) can come on remand, in the lower court.

    Oh! Thanks! (none / 0) (#38)
    by coigue on Wed Feb 25, 2009 at 10:41:24 PM EST
    Naive (none / 0) (#10)
    by lentinel on Wed Feb 25, 2009 at 06:37:44 PM EST
    I'm probably naive, but I don't see how it is constitutional to use public money to promote any religion.

    That, at least, is how I see the placing and maintaining of religious symbols in a public park.

    It Was A Gift (none / 0) (#11)
    by squeaky on Wed Feb 25, 2009 at 06:41:44 PM EST
    I think. And the Summam also wanted to give a gift and place it in the park.

    Yes, but (none / 0) (#15)
    by lentinel on Wed Feb 25, 2009 at 06:50:47 PM EST
    is public money being used to clean and maintain this religious symbol?

    And of course there is the fact that, in my opinion at least, a city government is deciding to promote a religion by allowing this kind of "gift". As an American citizen, I would find it a true intrusion upon the tranquility I would expect to experience in a public park.


    Um... (none / 0) (#16)
    by squeaky on Wed Feb 25, 2009 at 06:52:38 PM EST
    is public money being used to clean and maintain this religious symbol?

    No, god does that.


    Does (none / 0) (#18)
    by lentinel on Wed Feb 25, 2009 at 07:05:17 PM EST
    God have a broom?
    Does she use Lestoil?

    Broom, Lestoil? (none / 0) (#19)
    by squeaky on Wed Feb 25, 2009 at 07:06:17 PM EST
    No I think God just sucks.

    God is a vacuum? (none / 0) (#31)
    by coigue on Wed Feb 25, 2009 at 10:29:07 PM EST
    In Balboa Park in San Diego (none / 0) (#14)
    by oculus on Wed Feb 25, 2009 at 06:48:21 PM EST
    there is a nativity scene in Dec. each year, which, as I recall, has been challenged in court. When I checked it out last Dec. I noticed a sign on the outside of the end booth stating the "scene" is not city property, it is entirely private.  Of course, it is sitting in a city park--but nevermind.  Reminds me of Guantanamo and the 1st Circuit Court of Appeals.  

    I'm hopelessly (5.00 / 1) (#17)
    by lentinel on Wed Feb 25, 2009 at 07:03:42 PM EST
    old fashioned. I think it is outrageous that we have "in God we trust" emblazoned on our money. I also can't stomach the Eisenhower era commie witch hunt intrusion of "under God" in our pledge of allegiance. I recoil at the White House having a Christmas tree - and having an annual tree lighting ceremony each year. It's outrageous. Who pays for this? If it's tax money, it should be outlawed.

    You let these little things go - and we wind up where we are now. We've now gotten used to our leaders trumpeting their religious beliefs instead of insisting on privacy with respect to them. Obama and McCain were trying to out-Christian each other. What a sight.

    What's next? An American ayatollah?


    What was your reaction to The Rev. (none / 0) (#25)
    by oculus on Wed Feb 25, 2009 at 09:42:43 PM EST
    Rick Warren segueing directly into the Lord's Prayer from his invocation?

    I (none / 0) (#43)
    by lentinel on Thu Feb 26, 2009 at 06:32:12 AM EST
    oftentimes do not feel like a citizen of America.

    I do not recognize the country when things such as that are sanctioned and encouraged by the government.

    Obama, to me, has no defined identity.


    A friend of mine who was raised (none / 0) (#45)
    by oculus on Thu Feb 26, 2009 at 09:22:34 AM EST
    as a Mormon but is now an atheist wasn't bothered by inclusion of the Lord's Prayer and was joyful Obama included atheists in his inauguration speech.

    Obama (none / 0) (#47)
    by lentinel on Thu Feb 26, 2009 at 02:34:41 PM EST
    acknowledged the existence of atheists. He also acknowledges the existence of gay people. He then presented a public display of religion during what should have been a solemn secular occasion - offered by a guy who has expressed condemnation of gay people.

    Where do we go from here?

    Maybe there are gay people who weren't bothered by that chump - Warren.

    All I can report is my reaction to the spectacle.

    I don't think that the promotion of religion belongs in an inauguration. I think the presentation of Warren as the one to promote it is sickening.


    Correct decision (none / 0) (#21)
    by DaveOinSF on Wed Feb 25, 2009 at 07:55:18 PM EST
    The court did not say the monument was free and in the clear, only that the Free Speech clause was not violated.  A lower court had held ruled for Summum on Free Speech grounds and the Supremes were only ruling on the lower court's ruling.  Whether the Establishment clause was violated is a separate question which will now need to be argued.

    Justice Alito Meets John Lennon (none / 0) (#22)
    by Peter G on Wed Feb 25, 2009 at 08:22:52 PM EST
    You didn't mention the most surprising thing about the majority opinion:  in the course of an interesting discussion about determining the meaning of public monuments, Alito's majority opinion (under 20 pages, not too much or too hard to read) discusses (pp. 12-13) the "Imagine" memorial to John Lennon in Strawberry Fields, Central Park, NYC -- and in a footnote quotes all the lyrics to "Imagine."  That's got to be a first for the Supremes.

    That's wild... (none / 0) (#44)
    by kdog on Thu Feb 26, 2009 at 08:49:00 AM EST
    lets hope some of Lennon's message sunk in!

    Dalai Lama (none / 0) (#26)
    by diogenes on Wed Feb 25, 2009 at 09:45:10 PM EST
    Why do I think that if the San Francisco City Council built a statue of the present Dalai Lama upon his death and put it in a park that no one would complain?  Bill Maher took lots of shots at Christians in Religulous but didn't mention the mysterious way that a baby immediately appears to take over when the Dalai Lama dies.  I guess you can bang people over the head with religion if it promotes "peace" and the like.

    A Statue of Dali Lama (none / 0) (#27)
    by squeaky on Wed Feb 25, 2009 at 09:57:56 PM EST
    Is not a religious symbol but to tibetan buddists it would be a statue just like a statue of Ghandi or Abe Lincoln They do not pray to to the dalai lama.

    it would be wierd if he had (none / 0) (#33)
    by coigue on Wed Feb 25, 2009 at 10:31:36 PM EST
    since most people already think Buddhism is strange and exotic.

    Maher wants us to look at ourselves.

    Does that make Religulous clearer to you?


    I suspect (none / 0) (#28)
    by coigue on Wed Feb 25, 2009 at 10:21:01 PM EST
    that if someone sued to get the 10 commandments removed, the decision would be different. My guess is that this was a narrowly defined decision.

    Precisely. But how does Pleasant Grove's decision to display the Ten Commandments without displaying monuments to competing religions comport with the Establishment Clause?

    Tried In Texas (none / 0) (#32)
    by squeaky on Wed Feb 25, 2009 at 10:30:45 PM EST
    and tried in Kentucky 2x (none / 0) (#34)
    by coigue on Wed Feb 25, 2009 at 10:33:25 PM EST
    and won 5-4 (same articale as your link)

    Yes, But (none / 0) (#36)
    by squeaky on Wed Feb 25, 2009 at 10:37:41 PM EST
    It seems to me that Texas is the closer parallel to the ten commandments in the park. Both have been there 40 years and not particularly religious, bla bla bla..

    Hmmm. (none / 0) (#37)
    by coigue on Wed Feb 25, 2009 at 10:40:15 PM EST
    The May Have Set Up (none / 0) (#39)
    by squeaky on Wed Feb 25, 2009 at 10:51:42 PM EST
    To win because of the Kentucky rulings, but the monuments and arguments for having them there seem more similar in the Texas case than in the Kentucky case, to me.
    The key difference, Breyer said, was that the Kentucky displays stemmed from a governmental effort "substantially to promote religion," and the Texas display served a "mixed but primarily non-religious purpose."

    The Kentucky cases involved a dispute over two framed copies of the Ten Commandments displayed in two courthouses. The majority determined those exhibits went too far in promoting religious messages.

    In the Texas case, a 6-foot-high granite Ten Commandments display was among nearly 40 monuments and historical markers spread across 22 acres in front of the capitol in Austin.

    From the NYT linked article above:

    The monument in question, Justice Scalia continued, is virtually identical to one the court allowed to be displayed on the grounds of the Texas Capitol. "The city can safely exhale," he wrote.

    I see. (none / 0) (#42)
    by coigue on Thu Feb 26, 2009 at 12:55:01 AM EST

    "Thou shalt have no other gods before (none / 0) (#40)
    by oculus on Wed Feb 25, 2009 at 10:52:45 PM EST

    You, Occulus? (5.00 / 1) (#41)
    by coigue on Thu Feb 26, 2009 at 12:54:04 AM EST
    I had no idea.

    Erm...sorry I was so snarky, Lord.


    Establishment clause (none / 0) (#46)
    by rea on Thu Feb 26, 2009 at 10:52:18 AM EST
    I can see why the plaintiffs might not make an establishment clause argument, if their goal was to get their monument displayed rather than eliminate the 10 Commandments monument. And I can see why the Supreme Court might not reach out and decide an issue not before it--indeed, it would be improper to do otherwise.  And with that background, this strikes me as a rare sensible decision from Scalia et al.

    This is a Christian nation (none / 0) (#48)
    by Slado on Thu Feb 26, 2009 at 04:56:37 PM EST
    At what point is it Ok for something with Christianity in it to be displayed publicly?  

    Christian Nation? (none / 0) (#49)
    by squeaky on Thu Feb 26, 2009 at 05:05:14 PM EST
    You must be high.