WASHINGTON – The Supreme Court tackled a complex case Wednesday involving a little-known religious group and its desire to place a monument of its own next to the Ten Commandments in a Utah city park.
Pleasant Grove City, Utah, accepted the Ten Commandments monument from the Fraternal Order of Eagles in 1971 after approval by its city council. The park contains a number of other monuments as well. The Summum religious group now argues it should also be able to erect a display in that park consisting of its Seven Aphorisms.
Summum leaders insist the park is a public forum and the government must allow it to place a monument in the same setting in which it has already accepted the Ten Commandments.
Pleasant Grove City insists this case is about government speech, and that Summum has no First Amendment right to give the city a monument and to force the city to take ownership of it. The city maintains that the park in question is a non-public forum and that neither Summum nor any other group has the right to force the city to post a display.
During Wednesday's oral arguments, the justices and counsel for the parties engaged in heated arguments over the definition of "government speech." Attorney for the city, Jay Sekulow, urged the Justices to view the current Ten Commandments monument as something the city owns and displays, but doesn't necessarily endorse.
"I think, when it comes to the issue of selecting monuments for its park, it's very similar to a museum curator or the arts," said Sekulow. He argued that the government's speech simply consists of the decision to accept the third-party gift and put it into the park. As such, the city can choose to decline the Summum monument because it is not making the decision based on content.
Summum attorney Pamela Harris said governmental bodies could make the distinction clear by using truly content-neutral factors like setting an arbitrary number on how many monuments would go in to the park space.
"As long as it does it on a content-neutral basis — because it is genuinely concerned about aesthetics, space constraints, clutter in its parks — a city can enact a ban or a limit on the number of displays," said Harris, seeming to suggest a first-come, first-served solution.
Justice Antonin Scalia countered with a question about whether, on that basis, Harris would feel it was reasonable to accept a monument celebrating chocolate chip cookies simply because it was one of the first displays to be submitted. After the laughter died down in the courtroom, the justices got back to intense probing that seemed to indicate there will be intense analysis of the delicate framework now in place regarding religious displays and how that will appropriately be applied to the Summum case.
Justice Ruth Bader Ginsburg seemed skeptical of the concept that the city could accept the Ten Commandments monument, display it, and then act as if it does not endorse the underlying message by the group that donated it.
"Isn't this really the government endorsement of the Eagles' message? I mean, the Eagles are all over this monument, their symbol of the eagle, and the Eagles want it to be known that this is their monument," said Ginsburg.
Justice David Souter also questioned whether the city's position was simply an intricate cover to justify its way out of accepting displays it does not agree with.
"Nothing could be a more obvious control of the message than the criterion that says we will decide, in determining to accept it or not ... on the basis of whether we agree with the message. That is control with a vengeance," he said.
In considering whether or not the government must be forced to showcase monuments that serve as a counter to current displays, Chief Justice John Roberts asked just how far cities should be pushed to come up with an all-or-nothing solution.
"I mean, you have a Statue of Liberty; do we have to have a statue of despotism? Or do we have to put any president who wants to be on Mount Rushmore?" he asked.