Last year, the court told a city in Utah that since it allows the display of a Ten Commandments monument in a public park it must also allow followers of the Summum religion to erect a similar monument displaying the "Seven Aphorisms of Summum."
The ruling prompted an outcry by state and local officials and veterans who warn that the appeals court decision will force cities to either remove all monuments from public property or accept all privately donated monuments – including displays that might be offensive to residents.
On Monday, the US Supreme Court agreed to hear the case next fall to decide what restrictions, if any, cities and towns may enforce against the placement of private monuments on public property.
The controversy began in 2005 when the mayor of Pleasant Grove City, Utah, was contacted by the president of the Salt Lake City-based Summum church, who requested permission to erect the "seven aphorisms" monument near the city's Ten Commandments monument in Pioneer Park.
The Summum church teaches that the seven aphorisms were on the first stone tablets brought by Moses from Mount Sinai. According to the Bible, Moses smashed the first tablets. The Ten Commandments were later delivered on a second set of tablets.
When the city refused permission, the group sued. The church alleged that the city's refusal to allow a Summum monument violated First Amendment free speech protections.
A federal judge ruled for the city, but a three-judge panel of the 10th US Circuit Court of Appeals found for the church.
The case turns on what kind of speech the monument dispute implies. Does the Ten Commandments display involve private speech in an open forum – like individuals expressing their opinions in a town meeting? Or is the permanent placement of a Ten Commandments monument on public land a form of government speech that is not open to everyone?
The Ten Commandments monument was donated in 1971 by the Fraternal Order of the Eagles. The appeals court ruled that the monument was a form of private speech by the Eagles being communicated in a public forum – Pioneer Park. Because a public forum exists there, the city could not prevent others from participating by erecting their own monuments, the appeals court reasoned.
When the full 10th Circuit heard the case, it split on the issue, and the decision against the city stood.
In a dissent, Judge Michael McConnell warned of dire consequences if the appeals court decision was not overturned. "Every park in the country that has accepted a VFW memorial is now a public forum for the erection of permanent fixed monuments; they must either remove the war memorials or brace themselves for an influx of clutter," he wrote.
Judge McConnell's warning continued: "A city that accepted the donation of a statue honoring a local hero could be forced under the panel's rulings, to allow a local religious society to erect a Ten Commandments monument – or for that matter, a cross, a nativity scene, a statue of Zeus, or a Confederate flag."
In urging the high court to take up the case, Jay Sekulow of the American Center for Law and Justice says it was government speech when city officials placed the Ten Commandments monument in the park.
Accepting a monument for permanent display as the government's own property does not require accepting other monuments in the name of content – or viewpoint neutrality," Mr. Sekulow wrote in his brief on behalf of Pleasant Grove. "Nor does the government's acceptance of a donated monument require that a government park be turned into a cluttered junkyard of monuments contributed by all comers."
Lawyers for the Summum church say the public outcry is Pleasant Grove's fault. The city adopted a written policy permitting the display of privately donated monuments in public parks. Under those circumstances, the court found that donated monuments were part of a public forum. Once a public forum is established, government may not discriminate against other speakers, they say.
"Far from the radical and far-reaching decision described by [the city], the decision below is in fact narrow and limited in scope," writes Washington lawyer Pamela Harris in her brief on behalf of the church.
In a friend of the court brief, the city of Casper, Wyo., urged the high court to take up the case and reverse the 10th Circuit decision. The city said the appeals court decision had placed Casper in a "terrible dilemma."
Casper is the hometown of Matthew Shepard, a young gay man who was tied to a fence, beaten, and then left to die near Laramie, Wyo., in October 1998. The case became a national symbol of bigotry and violence against homosexuals. It also became an antigay rallying cry of Pastor Fred Phelps of the Westboro Baptist Church.
Mr. Phelps is attempting to use the 10th Circuit decision to force the city of Casper, where Mr. Shepard is interred, to erect a Matthew Shepard monument near the Ten Commandments monument in a city park.
The Phelps monument would read: "MATTHEW SHEPARD Entered Hell October 12, 1998, in Defiance of God's Warning 'Thou shalt not lie with mankind as with womankind: it is abomination.' Lev. 18:22."
"Now the city confronts a dilemma," writes Patrick Gillen of the Chicago-based Fidelis Center for Law and Policy, in his brief for the City of Casper. Does the fact that the city has a Ten Commandments monument mean that it must now incorporate Pastor Phelps's monument? he asks.
"The city dreads the answer for reasons any person who values civility can easily understand," Mr. Gillen writes.
The case is Pleasant Grove City v. Summum (07-665).