Does a Minority Religion Have a Right to Join Majority Religions in Placing Its Own Monument in a Public Park?
The Supreme Court Opts to Resolve the Question

This week marks the end of the Supreme Court's oral argument calendar for the 2007-2008 Term. Although many of this Term's blockbuster cases haven't yet been handed down (and won't be issued until May and June), it's not too early to begin looking ahead to the 2008-2009 Court session, and the important cases and issues the Justices will take up then.

One noteworthy case on which the Court granted review a few weeks ago is Summum v. Pleasant Grove City. As fellow FindLaw columnist Michael Dorf noted earlier this month, the case lies at the intersection of a number of important First Amendment doctrines. Our take on the case, while not completely inconsistent with Professor Dorf's, is different from his in significant ways.

The Facts of the Case, and the Court Rulings thus Far

Plaintiff Summum is a religious organization that requested permission to erect a monument containing the "Seven Aphorisms of Summum" - a set of sayings that adherents of Summum believe that God gave to Moses - in a city park in Pleasant Grove, Utah. The park already contained buildings, artifacts, and permanent displays, including a Ten Commandments monument donated to the city in 1971 by the Fraternal Order of the Eagles. After some back-and-forth, the city denied Summum's request, on the ground that the proposed Aphorisms display neither related to the city's history nor was tied to groups having longstanding relationships with the city.

Summum then brought suit seeking an order directing the city to permit the placement of its monument in the park.

The federal district court rejected the claim, but a three-judge panel of the United States Court of Appeals for the Tenth Circuit reversed. The Tenth Circuit ruled that because the location of the proposed monument was a park, and because other private monuments (such as the Ten Commandments display) had been allowed, the city was subject to First Amendment "forum" analysis. Under "forum" analysis, the government cannot allow some speakers to use the park property for speech, but then turn away others based on the content of their speech. Because it held that the decision to reject Summum's request was based on the content of its proposed speech, the Tenth Circuit panel ruled that the city had violated the First Amendment restrictions that are imposed on it when it regulates speech in a traditional public forum.

The city requested that the Tenth Circuit rehear the case en banc (a procedure by which an entire federal Court of Appeals can reconsider a case already decided by a three-judge panel). However, the city failed (after a close vote that triggered written dissents) to convince a majority of the Tenth Circuit Judges to rehear the matter. The city then sought Supreme Court review, which was granted for the fall.

The Reasoning of the Dissenting Judges: Making a Permanent versus Transitory Distinction

The dissenting judges on the Tenth Circuit argued that the majority's analysis was wrong for two reasons. First, the judges reasoned that so-called forum analysis does not apply in the ordinary way when the speaker wishes to use public property to erect "fixed" or "permanent" expressive monuments, as distinguished from "transitory" forms of expression. As dissenting Judge Michael McConnell put the argument, "[b]y tradition and precedent, city parks [] must be open to speeches, demonstrations and other forms of transitory expression. . . [b]ut neither the logic nor the language of [] Supreme Court decisions suggests that city parks must be open to the erection of fixed and permanent monuments expressing the sentiments of private parties."

Otherwise, McConnell wrote, the fact that Central Park in New York contains an Alice-in-Wonderland statue donated by a private party would mean that New York would have to allow Summum's monument as well.

This distinction between permanent and transitory has some intuitive appeal. Professor Dorf considers it "workable enough."

However, we think things are a bit more complicated here. We certainly agree with the Tenth Circuit dissenters and Professor Dorf that not all persons and organizations seeking to erect permanent monuments must have access to all public parks with any monuments or statues in them. For instance, it would be hard to justify a doctrinal rule that would require The District of Columbia to allow a statue of Lord Cornwallis to be placed in Lafayette Park simply because it had already permitted a statue of George Washington to be located there.

The Problem with Relying on the Permanent/Transitory Distinction: Why Even Some Sets of Permanent Displays May Properly Be Deemed Public Fora

However, we are not yet ready to join a rush to judgment for the proposition that forum analysis can never apply to displays on public property simply because the displays are permanent. At a minimum, we think this issue requires greater discussion. Let's suppose a state allows numerous permanent displays, donated by private individuals, to be located on public property - such as the grounds of the state capital or a park in front of city hall. In such a circumstance, would it ever be reasonable for a court to conclude that the state has created a designated public forum in this area, or that the park should at least be considered a nonpublic forum for First Amendment purposes? We think the answer in some cases might be "yes."

For example, there are several lower court cases involving challenges to content- and viewpoint-based restrictions on words written on tiles (or bricks) that are donated by private persons to be placed on the halls and walkways of public schools. Typically in these cases, the schools have invited parents and community members to design or inscribe a message on one or more tiles and submit them (often along with a financial contribution) for placement at the school. When the schools refused to accept certain tiles expressing religious messages, the donors brought suit and argued that their First Amendment rights had been violated.

Clearly, the tiles and bricks at issue are intended to be permanent, not temporary, fixtures. Yet courts that have adjudicated these cases (understandably) did not find them to be easy to resolve, and there is no clear lower court consensus as to the proper analysis to be applied. In some cases, such as Demmon v. Loudin County Public School, a 2004 case from the U.S. District Court for the Eastern District of Virginia, the courts employed forum analysis and held that the schools had violated the First Amendment. In others, such as Fleming v. Jefferson County School Dist. R-1, a 2002 decision by the U.S. Court of Appeals for the Tenth Circuit, courts have upheld the schools' decisions, but based their conclusions on the fact that the messages would be displayed in public schools, a location where free speech rights have been recognized to be limited in important respects.

Let's imagine, however, that these permanent brick or tile displays were located not on public school property but rather in an environment (such as a park) where free speech rights are not uniquely restricted. In that situation, there is every reason to believe that the courts in more of these cases would have applied rigorous review to content- and viewpoint-discriminatory decisions denying access to particular messages.

In short, while permanence should be a factor, perhaps it should not always be dispositive (and other factors might include the size of each display, and the number of displays in the overall mix.)

The Dissenters' Second Argument: The Existing Monuments Were Themselves Government Speech, and The Government May Control the Messages It Sends

One way to arguably circumvent these complexities surrounding public forum law is for the government to adopt the message communicated by a permanent structure placed on public property as its own. The dissenters on the Tenth Circuit and Professor Dorf seem to embrace this second option.

But we see at least two potential difficulties with this approach. First, if many different displays by different donors are displayed on public property, it is simply disingenuous at best, if not plainly false, for the government to claim that such a diverse range of messages truly reflect the government's own coherent, consistent voice. For example, could anyone maintain that the government actually embraces all the messages on permanent headstone markers in a public cemetery? Or all the messages communicated by various busts and other sculptures in a publicly-owned sculpture garden? We think that in order to invoke the "government as speaker" doctrine when sued, government must show that it has actually embraced and amplified the expression embodied in the existing privately-donated structures.

Second, if a smaller number of structures are displayed (such that government could plausibly demonstrate adoption of their messages), and if one of the monuments or plaques communicates a religious message, then the government's assertion that the structure communicates its own message raises serious Establishment Clause concerns. Both the Tenth Circuit dissenters and Professor Dorf acknowledge such concerns, and that they might be weighty. Caught between Free Speech Clause and Establishment Clause mandates, the government would have to argue that it can have its constitutional cake and eat it too: It would have to be able to show, first, that the placement and maintenance of the structure was too much like government speech for First Amendment principles to limit the state's ability to engage in viewpoint discrimination, but also, second, that the placement and maintenance of the structure was not enough like the government's own religious message to violate the Establishment Clause.

Why the Supreme Court's Recent Decision on Ten Commandments Monuments Raised Different Questions than Those the Summum Case Raises

Finally, it is worth emphasizing here that the last problem we identify in this column that is raised by the Summum case is genuinely a new one for the Court.

Some commentators have seemed to intimate otherwise. For instance, Judge McConnell, in his opinion in the Tenth Circuit, says that the Establishment Clause issue "would depend on details of [the Ten Commandments' display's] context and history, in accordance with the Supreme Court's recent decision [in 2005] in . . . Van Orden v. Perry."

But we believe the issue presented by Summum is quite distinct from the issues involved in Van Orden. That is because the Court in Van Orden responded to an Establishment Clause challenge to Texas's decision to accept a Ten Commandments monument donated by a private group and place it on the State Capital Grounds. There was no issue raised in that case about whether Texas would have been (or would have to be) receptive to accepting other religious displays to be placed in a similar location. And that is the very issue implicated in the Summum case.

That question - the question of whether it violates the Establishment Clause for the state to accept one religious display and locate it on public property, while refusing to accept another display expressing a different religious message -- has never been resolved by the Supreme Court. We foreshadowed this issue in an earlier column we wrote together for this website. What we noted there bears repeating today (and we think perhaps Professor Dorf would not disagree): If the Court is going to retreat from Establishment Clause principles that prevent government from endorsing religious messages, then it is going to have to confront two questions: The first (at issue in Van Orden) is whether government can say 'yes' when it is asked to sponsor a religious display. The second (and new, equality-oriented, one) is whether the government can say 'no' to one faith's request after it has already agreed to sponsor a display from a different faith.