Dispatches from the Creation Wars

Victory in Summum Case

Okay, some people are going to say that a 9-0 loss for Summum in their challenge to get a Seven Aphorisms monument in a public park next to a Ten Commandments monument is a loss. I think it’s a victory. Here’s the full ruling, which is quite complex. Justice Alito wrote the majority opinion, which was joined by everyone except Justice Souter. Souter wrote his own concurrence agreeing with the result but rejecting most of the reasoning.

Stevens and Ginsburg also have their own concurring opinion, agreeing with the result but rejecting part of the reasoning. Scalia and Thomas also had a concurring opinion doing the same thing. And so did Breyer. Most notable is that the majority opinion clearly accepts the notion that once the government accepts a privately donated monument, it becomes government speech rather than private speech. He thus rejects the public forum free speech analysis:

Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Thus, a government-commissioned and government-financed monument placed on public land constitutes government speech. So, too, are privately financed and donated monuments that the government accepts for public display on government land. While government entities regularly accept privately funded or donated monuments, their general practice has been one of selective receptivity. Because city parks play an important role in de-fining the identity that a city projects to its residents and the outside world, cities take care in accepting donated monuments, selecting those that portray what the government decision makers view as appropriate for the place in question, based on esthetics, history, and local culture. The accepted monuments are meant to convey and have the effect of conveying a government message and thus constitute government speech…

We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

But Alito also recognized that there are limits to the views the government can express, one of them being the Establishment Clause:

This does not mean that there are no restraints on government speech. For example, government speech must com-port with the Establishment Clause.

Remember that the plaintiffs in this case did not argue that the Ten Commandments monument violated the Establishment Clause, only that not allowing the Summum monument violated the court’s free speech/public forum analysis. But clearly everyone recognizes that by concluding that a Ten Commandments monument, once accepted, is government speech presents a possible Establishment Clause problem. Scalia and Thomas go out of their way to argue that even if that is a potential problem, Ten Commandments monuments are still safe under current precedent:

As framed and argued by the parties, this case presents a question under the Free Speech Clause of the First Amendment. I agree with the Court’s analysis of that question and join its opinion in full. But it is also obvious that from the start, the case has been litigated in the shadow of the First Amendment’s Establishment Clause: the city wary of associating itself too closely with the Ten Commandments monument displayed in the park, lest that be deemed a breach in the so-called “wall of separation between church and State,” respondent exploiting that hesitation to argue that the monument is not government speech because the city has not sufficiently “adopted” its message. Respondent menacingly observed that while the city could have formally adopted the monument as its own, that “might of course raise Establishment Clause issues.”

The city ought not fear that today’s victory has propelledit from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.

But I think Scalia knows quite well that the result in this case sets up an inevitable conflict with other Ten Commandments cases. And as the justice who most often preaches on the need for a consistent and coherent message from the court, he knows quite well that our already confused establishment clause jurisprudence just got even more confused.

That doesn’t mean that this necessarily means that the court must rule that Ten Commandments monuments are out in future cases. But it becomes a heck of a lot easier to do so. And the court has painted itself into a corner from which it will be difficult to extract itself.