Dispatches from the Creation Wars

En Banc Review Denied in Summum Cases

Remember the Summum cases, where a small religious group wanted to place monuments to the Seven Aphorisms in public parks in two cities in Utah? In both cases, the district court ruled for the plaintiffs and against the cities and the 10th Circuit Appeals Court upheld both rulings. The cities then asked for en banc review by the full 10th circuit but the vote was 6-6, which means there will be no full review and the rulings stand (see the full ruling here).

The rulings essentially said that if you allow a community group to erect a permanent monument on public property, you make the park into an open forum and you cannot then prevent other community groups from putting up similar displays. There were two dissents filed on the ruling to deny en banc review, one by Judge Michael McConnell, universally thought to be on a short list for any open Supreme Court seat by a Republican administration. Here is McConnell’s basic argument:

These opinions hold that managers of city parks may not make reasonable, content-based judgments regarding whether to allow the erection of privately-donated monuments in their parks. If they allow one private party to donate a monument or other permanent structure, judging it appropriate to the park, they must allow everyone else to do the same, with no discretion as to content – unless their reasons for refusal rise to the level of “compelling” interests. See Summum v. Duchesne City, 482 F.3d 1263, 1274 (10th Cir. 2007) (a “constitutional right exists to erect a permanent structure on public property . . . when the government allows some groups to erect permanent displays, but denies other groups the same privilege”); Summum v. Pleasant Grove City, 483 F.3d 1044, 1054 (10th Cir. 2007) (the city “could ban all permanent displays of an expressive nature by private individuals” but may not exclude a monument based on its content unless the restriction serves “compelling” interests and is “narrowly tailored to achieve its stated interests”). This means that Central Park in New York, which contains the privately donated Alice in Wonderland statute, must now allow other persons to erect Summum’s “Seven Aphorisms,” or whatever else they choose (short of offending a policy that narrowly serves a “compelling” governmental interest). 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.

This leads to a rather obvious question: what’s the alternative? If the government can make such “reasonable, content-based judgments” on which permanent monuments to allow and which to reject, would McConnell accept as a reasonable judgment one that allows Christian monuments but not non-Christian ones? He doesn’t say, but since that appears to be precisely the case here – both cities allowed Ten Commandments monuments but rejected Seven Aphorisms monuments – one assumes the answer is yes. But how can that not be viewed as government favoritism toward, and thus tacit endorsement of, the one religion allowed to place such monuments on public property?

McConnell then goes on to make what seems to me to be a rather odd argument concerning when a park is an open forum:

With all due respect to the panel, this conclusion is unsupported by Supreme Court precedent. None of the cases cited supports this proposition. By tradition and precedent, city parks – as “traditional public forums” – must be open to speeches, demonstrations, and other forms of transitory expression. But neither the logic nor the language of these Supreme Court decisions suggests that city parks must be open to the erection of fixed and permanent monuments expressing the sentiments of private parties. By their policies or actions, governments may create designated public forums with respect to fixed monuments, but–contrary to these opinions–the mere status of the property as a park does not make it so.

I think this is a misrepresentation of the logic of the rulings to which he objects. They are not arguing that all city parks must be open to the erection of fixed and permanent monuments expressing the sentiments of private parties; they are arguing that the city cannot choose only to allow one religious group to erect such monuments and refuse to allow all others to do so. Even more strangely, McConnell argues that in both cases, the message those monuments send is, in fact, government speech:

In the Duchesne case, the Ten Commandments monument is apparently the only fixed monument in the park. In Pleasant Grove, the other permanent structures and monuments “relate to or commemorate Pleasant Grove’s pioneer history.” 483 F.3d at 1047. In neither case did the city, by word or deed, invite private citizens to erect monuments of their own choosing in these parks. It follows that any messages conveyed by the monuments they have chosen to display are “government speech,” and there is no “public forum” for uninhibited private expression.

But if this is true, doesn’t it only enhance any establishment clause problem that might be there? If allowing a private group to erect a Ten Commandments display in a public park is government speech, then this is clearly government endorsement of an explicitly religious doctrine and it violates the establishment clause. Nor do I think this argument escapes the reasoning of the ruling he is objecting to. Even if it is government speech, one must then answer the question of why it’s okay for the government to endorse one religion’s statements and refuse to endorse another.