NationStates Jolt Archive

Some of you may recall my thread (http://forums.jolt.co.uk/showthread.php?t=572969) about a Ten Commandments/other monument case before SCOTUS. The Supreme Court has ruled unanimously that a small religious group cannot force a city in Utah to place a granite marker in a local park that already is home to a Ten Commandments display. In a case involving the Salt Lake City-based Summum, the court said Wednesday that governments can decide what to display in a public park without running afoul of the First Amendment.

Justices Rule Sect Cannot Force Placing of Monument (http://www.nytimes.com/2009/02/26/washington/26scotus.html?hp)
By DAVID STOUT, New York Times
WASHINGTON — The Supreme Court ruled unanimously on Wednesday, in one of the most closely watched free speech decisions in years, that a tiny religious sect could not force a Utah city to let it erect a monument to its faith in a public park.

The fact that there is already a Ten Commandments monument in the park in Pleasant Grove City does not mean that city officials must also allow the religious group called Summum to place a monument there to the Seven Aphorisms of its faith, the justices ruled.

“We think it is fair to say that throughout our nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity,” and properly so, Justice Samuel A. Alito Jr. wrote for the court.

The case has been of keen interest to local and state officials across the country for several reasons. Not least is that officials have been concerned about what kinds of markers and monuments, if any, they might be forced to allow in public areas if Summum prevailed.

And while the case of Pleasant Grove City v. Summum, No. 07-665, involves religion, the real issue was free speech, not the separation of church and state, both of which are addressed in the First Amendment to the Constitution.

The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable.

But Justice Samuel A. Alito Jr., writing for the court, said the arguments embraced by Summum were not really the right way to look at the case. The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park, Justice Alito wrote.

“The Free Speech Clause restricts government regulation of private speech,” Justice Alito noted, referring to a clause in the First Amendment. “It does not regulate government speech.”

While a government entity is quite limited in its ability to regulate or restrict private speech in traditional public forums, like parks, the government entity “is entitled to say what it wishes,” Justice Alito wrote, citing earlier Supreme Court rulings. If the people do not like what their government officials say or stand for, they can vote them out of office, he wrote.

Not that government, through its officials, can say whatever it wants whenever it wants, Justice Alito observed. For one thing, government expressions must not violate the First Amendment’s ban on endorsement of a particular religion. Moreover, what government officials say may be limited “by law, regulation, or practice.”

“And of course, a government entity is ultimately ‘accountable to the electorate and the political process for its advocacy,’ ” Justice Alito wrote, quoting from an earlier Supreme Court decision.

Justice Stephen G. Breyer emphasized in a concurring opinion that, while the Summum members have been thwarted in their bid to have a monument erected, “the city has not closed off its parks to speech; no one claims that the city prevents Summum’s members from engaging in speech in a form more transient that a permanent monument.” In other words, Summum members, like other citizens, can presumably hand out leaflets or stand on soapboxes and hold forth on the issues of the day.

In its ruling on Wednesday, the high court overturned a decision by the United States Court of Appeals for the 10th Circuit, which had sided with Summum and told the city to allow the group’s monument to be erected at once.

The Summum group was founded in 1975, and contains elements of Egyptian faiths and Gnostic Christianity. The word Summum derives from Latin, and refers to the sum of all creation.

The issues raised by the Summum lawsuit have been of interest to legal scholars as well as government officials. “No prior decision of this court has addressed the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments for installation in a public park,” Justice Alito noted.

Here is a link to the pdf of the Court's opinion in Pleasant Grove City v. Summum (http://www.supremecourtus.gov/opinions/08pdf/07-665.pdf). (I'm still reading it. My uninformed impression is that the Court probably got it right, but I'm a bit disappointed just for the mischief a decision the other way would have caused. :wink: I'll be curious to see how the Court finessed the establishment of religion issue (or whether the Court simply didn't address it)).

Any thoughts?

I tend to agree with SCOTUS here. They wanted their own monument as well. After a while, the park would be full of monuments.

If they don't like the Ten Commandments, I bet they could successfully sue to have them removed. But they wouldn't get their own monument.

And the government's expression here doesn't violate the ban on endorsement of religion in what way...?

I tend to agree with SCOTUS here. They wanted their own monument as well. After a while, the park would be full of monuments.

If they don't like the Ten Commandments, I bet they could successfully sue to have them removed. But they wouldn't get their own monument.

They shouldn't have any religious monuments. Monuments are a freaking waste of space and granite anyway.

And the government's expression here doesn't violate the ban on endorsement of religion in what way...?

That's a different issue. No one was asking to have the Ten Commandments removed - they were asking for another monument.

That's a different issue. No one was asking to have the Ten Commandments removed - they were asking for another monument.

Yes, that was where they really went wrong. And I agree with the decision on that basis--but I'm still puzzled by Alito's statement here:

While a government entity is quite limited in its ability to regulate or restrict private speech in traditional public forums, like parks, the government entity “is entitled to say what it wishes,” Justice Alito wrote, citing earlier Supreme Court rulings. If the people do not like what their government officials say or stand for, they can vote them out of office, he wrote.

Not that government, through its officials, can say whatever it wants whenever it wants, Justice Alito observed. For one thing, government expressions must not violate the First Amendment’s ban on endorsement of a particular religion. Moreover, what government officials say may be limited “by law, regulation, or practice.”

I also dislike the addition of "a particular religion". The government does not have the right to endorse religion, period.

I'm torn. There are aesthetic reasons to have monuments and not too many monuments. Maybe the Ten Commandments monument was tasteful and suited the park while the Summum monument was made from glued together fragments of pink flamingoes and garden gnomes. If that Ten Commandments monument wasn't already donated and installed and Summum had come to the town with a tasteful and fitting monument extolling their beliefs, what would the town have said? I think the answer will reflect my agreement or disagreement with SCOTUS' decision.

If they're gonna put up one group's idiot rock sculpture they ought put up all of 'em. Gotta be fair.

If they're gonna put up one group's idiot rock sculpture they ought put up all of 'em. Gotta be fair.

Maybe they could put in a monument to cake instead. :)

Maybe they could put in a monument to cake instead. :)

Headline for news story reporting the next SCOTUS decision:

"There Is No Cake!"

If they're gonna put up one group's idiot rock sculpture they ought put up all of 'em. Gotta be fair.

No, they shouldn't put them all up, they should put none of them up. We all know what this group was trying to get at with this suit, but they went about it in the wrong way. Just because the government violated the tenet of non-endorsement by putting up the Ten Commandments monument does not mean that they should violate it some more by putting up another religion's mounment. At least, that's my opinion.

Maybe they could put in a monument to cake instead. :)

It would be a bad idea. Someone might try to eat the granite cake.

Yes, that was where they really went wrong. And I agree with the decision on that basis--but I'm still puzzled by Alito's statement here:

I also dislike the addition of "a particular religion". The government does not have the right to endorse religion, period.

I'm still reading the opinion (RL intervened) but that language about "a particular religion" is an inaccurate paraphrase on the part of the author of the article and not what Alito wrote. The opinion actually says:

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

The other day I was walking around campus and I saw a guy wearing a t-shirt that read, "Swallow, or it's going in your eye."

My reaction to that t-shirt was pretty much the same as my reaction to religious monuments. That being, "Why do some people want to advertise their own desperate insecurity?"

And the government's expression here doesn't violate the ban on endorsement of religion in what way...?

That's a different issue. No one was asking to have the Ten Commandments removed - they were asking for another monument.

FWIW, as I suspected and Hotwife correctly states, the majority opinion of the Court simply does not address the Establishment Clause issue because the Summum sect didn't challenge the Ten Commandments monument's propriety, but rather made a argument that its own monument couldn't be excluded.

Two of the concurring opinions raise the Establisment Clause issue. Justices Scalia and Thomas not surprisingly opine that there is no Establishment Clause problem, saying:

The city can safely exhale. 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.

Justice Souter raises the Establishment Clause issue, but does so to make clear the issue remains open:

Even though, for example, Establishment Clause issues have been neither raised nor briefed before us, there is no doubt that this case and its government speech claim has been litigated by the parties with one eye on the Establishment Clause, see ante, at 1 (SCALIA, J., concurring). The interaction between the “government speech doctrine” and Establishment Clause principles has not, however, begun to be worked out.

...

It is simply unclear how the relatively new category of government speech will relate to the more traditional categories of Establishment Clause analysis, and this case is not an occasion to speculate. It is an occasion, however, to try to keep the inevitable issues open, and as simple as they can be. One way to do that is to recognize that there are circumstances in which gov-ernment maintenance of monuments does not look like government speech at all. Sectarian identifications on markers in Arlington Cemetery come to mind. And to recognize that is to forgo any categorical rule at this point.

It would be a bad idea. Someone might try to eat the granite cake.

Maybe we can make it from real cake for safety purposes. It would probably need frequent replacement though.

Much as I am a firm beliver of the establishment clause(I have a few hard core Christian wackadoos in the family). I think the sect went at it wrong.

The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable.

Calling it a private monument moved it from the religious aspects. For example, I could demand a monument to Snoopy.

If they stuck to it being a religious expression and it should be allowed because the Christians have a religious monument. If denied then they would be in the rights to demand the removal of the 10 commandments.

Never understood this need for statues of the 10 commandments. Isn't that idolatry?

Public lands should be an all or nothing when it comes to religious expression.

The other day I was walking around campus and I saw a guy wearing a t-shirt that read, "Swallow, or it's going in your eye."

My reaction to that t-shirt was pretty much the same as my reaction to religious monuments. That being, "Why do some people want to advertise their own desperate insecurity?"

Because the people who put the monument up and the guy wearing that shirt had another thing in common: They're not getting any.

I'm still reading the opinion (RL intervened) but that language about "a particular religion" is an inaccurate paraphrase on the part of the author of the article and not what Alito wrote. The opinion actually says:

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

...dammit. Okay, Alito gets a pass on THIS one.

The other day I was walking around campus and I saw a guy wearing a t-shirt that read, "Swallow, or it's going in your eye."

Just pack up your penis now, dude. You won't need it as long as you've got that shirt.

Much as I am a firm beliver of the establishment clause(I have a few hard core Christian wackadoos in the family). I think the sect went at it wrong.



Calling it a private monument moved it from the religious aspects. For example, I could demand a monument to Snoopy.

If they stuck to it being a religious expression and it should be allowed because the Christians have a religious monument. If denied then they would be in the rights to demand the removal of the 10 commandments.

Never understood this need for statues of the 10 commandments. Isn't that idolatry?

Public lands should be an all or nothing when it comes to religious expression.

Shhhhh. It's only idolatry if someone else does it.

tear the whole place down, and build this:
http://img102.imageshack.us/img102/5337/dhs8we.jpg

tear the whole place down, and build this:
http://img102.imageshack.us/img102/5337/dhs8we.jpg

We don't need to know about your amorous adventures.

“ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ”

It cannot establish a state religion. It cannot prohibit the free exercise of religion. It cannot abridge free speech. It cannot abridge free press. It cannot prevent peaceful assembly. It cannot keep people from demanding the Government correct injustice.

I don't see where it says Government cannot endorse religion at all, though to be sure, that's generally where SCOTUS errs on the side of caution. It simply says that the Government can't decree we're all Christians, Muslims, Jews, Church of US, Jedi, or Pastafarians, nor can it force us not to practice any particular religion.

tear the whole place down, and build this:
http://img102.imageshack.us/img102/5337/dhs8we.jpg

''Stow A Hoe''?

“ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ”

It cannot establish a state religion. It cannot prohibit the free exercise of religion. It cannot abridge free speech. It cannot abridge free press. It cannot prevent peaceful assembly. It cannot keep people from demanding the Government correct injustice.

I don't see where it says Government cannot endorse religion at all, though to be sure, that's generally where SCOTUS errs on the side of caution. It simply says that the Government can't decree we're all Christians, Muslims, Jews, Church of US, Jedi, or Pastafarians, nor can it force us not to practice any particular religion.

Well, we can debate the meaning of the Establishment Clause, but I think both SCOTUS and the Founders were pretty clear that it means not only that government cannot establish a particular religion, but also that it cannot endorse religion or prefer religion to non-religion.

As SCOTUS explained in Everson v. Board of Education (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=330&invol=1#16), 330 U.S. 1, 15-16 (1947) (emphasis added):

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'

See also Wallace v. Jaffree (http://laws.findlaw.com/us/472/38.html ), 472 U.S. 38 (1985):

Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects - or even intolerance among "religions" - to encompass intolerance of the disbeliever and the uncertain.

See, e.g., Lee v. Weisman (http://laws.findlaw.com/us/505/577.html ), 505 US 577 (1992) ("The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten, then, that, while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference."); Torcaso v. Watkins (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=367&invol=488#495), 367 U.S. 488, 495 (1961) ("We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person `to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs"); Everson v. Board of Education (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=330&page=15#15), 330 US 1, 18 (1947) (the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers").

Now, clearly SCOTUS could have consistently been wrong all this time, but I don't think they have been. If you have reason to believe that SCOTUS has been wrong, please explain.

And the government's expression here doesn't violate the ban on endorsement of religion in what way...?
I'm sure this is old business, but i truly don't understand why the phrase, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..." means that a local government can't erect a Christian, Jewish, Muslim, etc, monument at its discretion, or refuse to do so, if it so desires. We're certainly not headed toward having a Church of the United States if we put a Christmas tree on the square. Are we?

Okay, it looks like I'm a little late to the show... Disregard.

''Stow A Hoe''?
It's obviously a place for storing farm and gardening tools.

Well, we can debate the meaning of the Establishment Clause, but I think both SCOTUS and the Founders were pretty clear that it means not only that government cannot establish a particular religion, but also that it cannot endorse religion or prefer religion to non-religion.

A long complicated list of precedence aside, this is very obviously a case of favoring one religion over another. And Alito's casual statements just provide evidence for it - that once the park accepts a statue, it becomes government property. Thus they are explicitly favoring Christianity over Summun by taking the Ten Commandments over the Summun statue,

I'm sure this is old business, but i truly don't understand why the phrase, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..." means that a local government can't erect a Christian, Jewish, Muslim, etc, monument at its discretion, or refuse to do so, if it so desires.
For the nth time, the 14th Amendment applies the First Amendment to the states.

A long complicated list of precedence aside, this is very obviously a case of favoring one religion over another. And Alito's casual statements just provide evidence for it - that once the park accepts a statue, it becomes government property. Thus they are explicitly favoring Christianity over Summun by taking the Ten Commandments over the Summun statue,
I have to agree with this. The SCOTUS made a very narrow decision that said, basically, "Hey, you handed us a can of worms!" I think it might have been the right decision considering its narrowness, but further litigation is outright asked for on the same monument.

I'm sure this is old business, but i truly don't understand why the phrase, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..." means that a local government can't erect a Christian, Jewish, Muslim, etc, monument at its discretion, or refuse to do so, if it so desires. We're certainly not headed toward having a Church of the United States if we put a Christmas tree on the square. Are we?

Okay, it looks like I'm a little late to the show... Disregard.

Actually, I think I answered the question of why government at any level can't endorse a religion or religion in general, but the question of what counts as an endorsement is not an easy one and the SCOTUS precedents are all over the place. So you raise a legitimate issue.

A long complicated list of precedence aside, this is very obviously a case of favoring one religion over another. And Alito's casual statements just provide evidence for it - that once the park accepts a statue, it becomes government property. Thus they are explicitly favoring Christianity over Summun by taking the Ten Commandments over the Summun statue,

I have to agree with this. The SCOTUS made a very narrow decision that said, basically, "Hey, you handed us a can of worms!" I think it might have been the right decision considering its narrowness, but further litigation is outright asked for on the same monument.

I think you two are right. This was the right decision for the narrow issue that SCOTUS was asked to decide, but it takes some very fancydancing to reconcile this decision with the Court's other decisions regarding displays of the Ten Commandments.

(And I apologize if the list of precedent was too long and/or too complicated. :wink:)

Whilst I agree with the ruling as a whole, I'm concerned about the justification, particularly the idea government can say as it please

This is a classic illustration of the proverb, "Hard cases make bad law". The Court was not about to rule that this town (and presumably every town in the country that has ever put up a dubious monument) is required to accept every "gift" of statuary from whatever cultish group wants to attention-whore. The Court was probably also reluctant to rule on whether the Ten Commandments thingy has to come down: but they couldn't rule on that anyway, because they are restricted to ruling on what the two sides are asking for, and Summum didn't demand the removal (I think that was sheer mischief on their part: it was much more lulz to press for their Seven Aphorisms thingy).