The US Supreme Court is considering whether a Utah city violated the free speech rights of a religious group when the city council refused to place the group's monument beside an existing Ten Commandments monument in a public park.
The case, set for oral argument Wednesday, explores whether the free speech protections of the First Amendment extend to the placement in public parks of private monuments.
Lawyers for the Summum religious group say the exclusion of its monument in Pleasant Grove City was impermissible government censorship – the city was blocking the organization's display in a public forum because it disagreed with the content of the message, they say.
Lawyers for Pleasant Grove counter that monuments in a city park are not part of a First Amendment public forum equivalent to spoken words in a debate or leaflets being handed out. They argue that when a city decides to place a privately donated monument in a park, the display represents the city's own speech and the city is not required to accept any monument a private group may want to donate.
The case, Pleasant Grove City v. Summum, has generated concern among municipal officials, veterans' groups, and others around the country that they may be forced by the courts to accept a barrage of unwanted monuments on public land.
"The range of possible choices is painfully clear," says Casper City Attorney William Luben in a friend of the court brief. "Be prepared to make every man the master of public property or make every man an iconoclast under pain of litigation."
Case being closely tracked
The Pleasant Grove case is being closely watched by constitutional scholars because it falls in the murky intersection of two key clauses in the First Amendment. The free speech clause requires that the government not discriminate in any public forum against private speakers based on the content of their message. But the same clause also permits the government to speak on its own without interference from private speakers.
In addition, the First Amendment's establishment clause forbids the government from discriminating against or promoting any particular religious faith.
In recent years, a number of lawsuits have challenged the display of the Ten Commandments on government property as violations of the establishment clause. The US Supreme Court has upheld some displays and struck down others.
But the Pleasant Grove case is different. Instead of asking for the removal of the Ten Commandments display, Summum sought to add its own religious display beside it.
When Pleasant Grove refused, Summum filed a lawsuit charging the city with violating its free speech rights. The group's lawyers said the Ten Commandments and other monuments created a public forum in the park and the First Amendment prohibited the government from picking which messages to display.
A panel of the 10th US Circuit Court of Appeals agreed with Summum and ordered the city to display the monument. Pleasant Grove is now appealing that decision in the Supreme Court.
Issue of religion in public forums
Lawyers for the city warn that if Summum wins its case at the high court, public parks nationwide may soon become cluttered junk yards of monuments – including some that may offend local residents.
"Accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny," writes Jay Sekulow in his brief on behalf of Pleasant Grove. He says, "Summum has no First Amendment right to impose its monument upon the city park."
Summum's lawyers say Pleasant Grove brought the issue upon itself. The city created a public forum by accepting 15 displays for its park, including the Ten Commandments.
"The most basic of First Amendment rules is that in a traditional public forum like a public park, a city may not discriminate among speakers based on the content of their speech," writes lawyer Pamela Harris in her brief for Summum.
The rejection of the Summum monument is a "targeted anti-Summum gerrymander, aimed at suppressing one particularly disfavored religious view," she says.
Pleasant Grove is a city of about 31,000 residents, most of whom are Mormons.
The Summum group is based in Salt Lake City. Founded in 1975 as an offshoot of Gnostic Christianity, its teachings center on seven principles of creation which adherents believe were inscribed on the first set of tablets delivered by Moses from Mt. Sinai.
The Ten Commandments story says that Moses destroyed the first tablets before returning to receive a second set containing the Commandments.
In 2003, Summum leaders asked Pleasant Grove to allow the display of the seven aphorisms.
One complicating factor is that 10th Circuit judges long ago ruled that Ten Commandments displays are private speech, not government speech. This ruling insulated municipalities from lawsuits under the establishment clause, but opened them up to challenges under the free speech clause.
In a friend of the court brief, Ayesha Khan, legal director for Americans United for Separation of Church and State, says the Pleasant Grove case should be litigated under establishment clause principles rather than free speech principles. Summum's real claim is that the city acted with religious animus in refusing to display its monument, she says.
"I think the record does suggest religious animus," she says, "but there is no smoking gun on that score."
Ms. Khan is urging the court to reverse the 10th Circuit free speech decision and make clear that the issues must be examined under the establishment clause.