Dispatches from the Creation Wars

Oral Argument in Summum Case

The Supreme Court heard oral arguments on the Summum case on Wednesday. You can see a full transcript here. You can’t necessarily tell how a justice will vote based on the questions they ask or how the oral argument went for either side, but this one was particularly interesting. Jay Sekulow went first, arguing on behalf of the city of Pleasant Grove, which denied the placement of the Summum monument.

His argument, as it has been all along, is that there is no open forum established by the city through the act of accepting the Ten Commandments monument from the Eagles because once they accept it, the monument becomes government speech rather than private speech.

The decision suffers from two constitutional defects: First, the court’s conclusion that a donated Ten Commandments monument constitutes private speech rather than Government speech is wrong. Here each of the monuments on display in Pioneer Park have been selected by the Government, are owned by the Government, controlled by the Government, and are displayed on Government property. When the Government is speaking, it is free from the traditional free speech constraints of the First Amendment.

Second, the court compounded its error by further concluding that Pioneer Park is a traditional public forum for the erection of permanent, unattended monuments by private parties.

He is not, of course, oblivious to the fact that this argument has clear establishment clause implications. If it’s government speech rather than private speech, isn’t the government endorsing the Ten Commandments? Interestingly, it was Chief Justice John Roberts who raised this issue almost immediately:

CHIEF JUSTICE ROBERTS: Mr. Sekulow, you’re really just picking your poison, aren’t you? I mean, the more you say that the monument is Government speech to get out of the first, free speech — the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause. If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking — supporting the Ten Commandments?

Sekulow’s answer to this was that the Ten Commandments monument was just an acknowledgment of the “pioneer heritage of the community” because those people were “on a quest for religious liberty.” He also argued quite strongly that the court could not consider the establishment clause issue because the respondents in the case — Summum — had rested their case entirely on a free speech analysis and had waived any establishment clause basis for their argument. If the Court considered the establishment clause issue, he said, this would be “inconsistent with the relief that the Respondents are really seeking.”

Justice Kennedy reminded Sekulow that this case would also establish a precedent for future cases:

JUSTICE KENNEDY: Then getting back to the Chief Justice’s point, it does seem to me that if you say it’s Government speech that in later cases, including the case of the existing monument, you’re going to say it’s Government speech and you have an Establishment Clause problem.

Sekulow then argued that even if there is an establishment clause problem, the court’s ruling in Van Orden would apply and it would not be a violation because the Ten Commandments monument is one of many similar monuments in the park in Pleasant Grove, just like the courthouse grounds in Texas, which would dilute any message of endorsement. That led to a moment of laughter when Justice Ginsburg tried to distinguish this case from Van Orden because the Van Orden monument had been in place for 40 years:

JUSTICE GINSBURG: Before we get — before we get away from the Government, the Establishment Clause, you said, well, Van Orden answered that, but did it? Because you don’t have here a 40-year history of this monument being there, and nobody seems to be troubled by it.

MR. SEKULOW: There is a 36-year history here. This monument has been on display since 1971. So this monument has been there a long time, and —

JUSTICE SCALIA: I think 38 is the cut-off point.

MR. SEKULOW: Is that the cut-off?


MR. SEKULOW: Perhaps I miscounted. It may be 38.

This is one reason why I instinctively like Scalia despite my many disagreements with him. He’s really quite funny. Anyway, back to the substance of the case. Several of the justices seemed to recognize another difficulty with Sekulow’s argument, which is that if the government can pick and choose which monuments they want to accept, and upon acceptance those monuments immediately become government speech, they are engaging in de facto viewpoint discrimination, thus causing a free speech problem as well. Justice Stevens asked:

JUSTICE STEVENS: Assume you didn’t have the policy that you do have, but it was perfectly clear that the city decided not to put up this monument because it disagreed with the message of the monument. Whether you call it Government speech or private speech, would that be permissible?

Sekulow responded that this might perhaps raise an equal protection or establishment clause problem, but not a first amendment problem. But remember, Sekulow is the very person who came up with the equal access rationale for allowing religious groups access to public facilities on equal footing with non-religious groups (in Lamb’s Chapel, a unanimous ruling). And he was right about that.

But it seems to me that his theory in Lamb’s Chapel applies perfectly here as well. Just as the government cannot pick and choose which community groups get to use public facilities for their meetings based upon the viewpoint expressed at those meetings, they also cannot pick and choose which community groups get to place monuments in a public park based on viewpoint.

This contradiction led Sekulow to a rather tortured argument:

JUSTICE KENNEDY: But, Justice Stevens’s question is important, maybe not for your case but for other cases. We are deciding this for other cases to arise, and why isn’t he correct that if you don’t like the message then that raises a content-based claim?

MR. SEKULOW: Because if the Government is speaking, if it’s the Government’s message, they’re of course allowed to engage in content-based statements.

Justice Souter recognized the shell game being played here and how the government could engage in de facto viewpoint discrimination without a de jure policy of doing so:

JUSTICE SOUTER: So the city, in effect, if the city says, we are going to have a designated ten-acre field in which anybody can put up a monument, but you can’t because we don’t like your message, there’s a First Amendment problem. But if the city hides the ball in effect and says in effect, we’ll –we’ll let monuments be placed on — we will accept monuments from people who want to place them on our property if the monuments have some kind of an arguable historical connection or a connection with people with long association with the community, as long as they have that sort of criterion in mind then they can select any way they want to?

Even Scalia recognized that this is a distinction without a difference:

JUSTICE SCALIA: It goes to the same thing, doesn’t it? I mean, whether it’s the Government stating the message or whether it’s the Government creating a limited public forum for the presentation of only those messages that it thinks are important, it comes to the same thing, doesn’t it?

Of course it does. That led to a fascinating exchange with Justice Stevens implying that they have to reach some conclusion on whether the city’s policy of only accepting monuments with a tie to the city’s “pioneer heritage” was a genuine and objective policy, or one merely designed to keep out viewpoints they don’t like. Sekulow doesn’t handle this very well:

JUSTICE STEVENS: Let me ask you a question to make sure I understand your position. It would have been permissible for the city to say, our park it filled with monuments and we are only going to let those in who convey messages that we agree with?

MR. SEKULOW: If the policy is —

JUSTICE STEVENS: If that’s a policy.

MR. SEKULOW: If the policy is that we’re only going — that the Government’s controlling those messages, it’s not individual private expression, of course. If it’s individual private — if the Government, on the other hand, were to say —

JUSTICE STEVENS: But really, in this case sort of the debate as to whether the policy justifications for the monument are a sham are not are really irrelevant?

MR. SEKULOW: From a legal standpoint on Government speech, it’s irrelevant. On the factual —
JUSTICE STEVENS: Even if it’s a Government forum for private speech, I think it’s the same thing. You’re defining — you define the forum to include only those — the forum is putting up monuments. You just put up those monuments that agree with the message.

JUSTICE KENNEDY: And the same question Justice Stevens had, just to tack onto his question here, your answer was: Oh, well, the Government owns it. Suppose the Government says: We will accept ownership only if we agree with the message. That just puts his question. I think the ownership argument is –is not an answer to the Justice’s question.

MR. SEKULOW: It’s not ownership, Justice Kennedy, in and of itself. Ownership is an indicator, a factor for control, but it is control of the message. When the Government implanted that monument donated by the Fraternal Order of Eagles, they were sending a message. It was not a message of “I am the lord thy God” —

JUSTICE SOUTER: Nothing could be a more obvious control of the message than the criterion that says we will decide in — in determining to accept it or not, we will decide on the basis of whether we agree with the message. That is control with a vengeance.

One of the really fascinating things about this case is how it has divided the Christian legal groups. Sekulow and the ACLJ are on one side while the Rutherford Institute is siding with Summum. They’ve filed a brief in the case arguing against Sekulow and Pleasant Grove. And they rip the argument being offered by Sekulow and others that if Summum wins this case, the government will be forced to erect a “statue of tyranny” beside the statue of liberty:

Pleasant Grove City contends that when government owns and controls a permanent monument or series of monuments that display private messages on public property, there is no First Amendment right to display competing messages because the displays are “government speech.” The City’s indiscriminately broad position is, however, belied by the anatomy of the speech in question. What the City ignores is that, “speech in fact can be, at once, that of a private individual and the government.” If the City did, in fact, adopt the
private speech engraved on a monument as its own, the First Amendment would presumably not apply in most situations and Summum would arguably have no right to erect its own monument. But if the City did not expressly adopt such private speech as its own, it may have engaged in unlawful viewpoint discrimination by favoring one private speaker and denying similar access to another.

Rather than yield to puerile, nonsensical shibboleths such as “the Statue of Liberty does not
require a Statue of Tyranny” or facile fearmongering about “cluttered junkyards of monuments” in the public square, this Court should instead respond with caution and careful deliberation. In resolving the difficult issues presented in this case, it is important that precious First Amendment freedoms in public places be protected…

If the City is left free to use a private surrogate to advance a particularly favored message, the shield of democratic accountability that otherwise underpins the government speech doctrine
actually serves as a means of unconstitutional viewpoint discrimination. Moreover, the City’s position–that merely granting access to a forum automatically shrouds speech with the protection of the government speech doctrine, “without [the City] necessarily subscribing to the precise messages engraved thereon,”–only proves that it is not, in fact, “government speech” because the message is admittedly not one from government. As such, “government speech” becomes a fiction of law, with dangerous consequences for free speech. This Court should, therefore, decline the City’s invitation to consider mere invocation of the government speech doctrine as a blanket, automatic defense to First Amendment claims, but should restrict it to those instances in which government has unambiguously adopted a particular message as its own and is clearly identified on the record as having done so.

The portion in bold refers to the city’s reply brief in the case, signed by Sekulow himself, which clearly contradicts Sekulow’s position that allowing a monument to be placed in a park automatically converts it from private speech to government speech. It says:

As this Court has recognized, government speech includes selecting and presenting messages that the government does not necessarily itself adopt, as with books in a library, items on display in a museum, speakers with contrary views in a lecture series, and so forth.

This is a clear contradiction in Sekulow’s argument. He’s trying to have his cake and eat it too. And frankly, I say let him win. I say grant the argument that this is government speech and then bring suits against such monuments all over the country on establishment clause grounds.