Pleasant Grove City, UT v. Summum decision

[Snowboarder_Bo]

I started a thread on this back in November 2008, when the arguments were made before the SCOTUS.

My apologies for bringing this up so long after the decision was handed down. Last November, the decision was expected by summer 2009; I had no idea it would actually come down in late February. In checking thru my “Of Interest - Legal” folder, I looked the case up and it was already a done deal.

Summum lost.

SCOTUS decision (.pdf!)
SCOTUS decision (.html, with links in the text)

Apparently, amicus briefs filed by 3 groups, including the City of New York, helped shape the decision(s). The points made by the amici can’t be denied, but I’m struck by how the decision seems to have such deep roots in tradition (“we’ve just always done this kind of thing”) and difficulty (“do you have any idea how much work it would be to correct this?”).

@Marci A. Hamilton

These amici argued, unassailably, that governments accept privately funded monuments all the time and thus, this case had the capacity to affect thousands of communities, states, and even the federal government. The fact is that there are public monuments everywhere, and to create a constitutional right to impose one’s own monument on a public space would be to create havoc at all levels of governments. Imagine Summum approaching the federal government and suggesting its monument must be placed on the Mall, right in front of the Washington Monument. Then imagine the plethora of other monuments that would then line the Mall if Summum’s request were to be constitutionally required to be granted.

@Marci A. Hamilton

The Court reversed the Tenth Circuit’s ruling, and ruled instead that, for purposes of the Summum monument, the park was not a public forum; that the speech was not speech protected under the First Amendment because a permanent monument constitutes “government speech”; and that permanent memorials are in a category distinct from transient speakers for purposes of free speech analysis.

cite

@Oyez

the Court reasoned that since Pleasant Grove City had retained final authority over which monuments were displayed, the monuments represented an expression of the city’s viewpoints and thus government speech.

cite

It seems to me to be a pretty tortured bit of logic, and as Ms. Hamilton notes

every member of the Court agreed on the result, but there were three concurrences (by Justices Stevens, Scalia, and Breyer) and one concurrence in the judgment (by Justice Souter), with each concurrence talking about a different aspect of free speech (or Establishment Clause) doctrine.

For myself, I’m not happy with the decision. I think it smacks of taking the easy way out, however much contortion was necessary. I understand the difficulties that a ruling in favor or Summum would have wrought, but I don’t think that this decision does much to uphold the Constitution. It seems to me to have been carefully crafted to give government(s) the right to passively (or maybe even tacitly) endorse whatever viewpoint they want, even a religious one, while also being able to exclude any other viewpoint that is deemed undesirable, even if that viewpoint is rejected because of religious bias.

So, I’m curious what people think, especially the legal types we have on the board: Bricker, Richard Parker, et. al.

Is this a good decision?

Is it the right decision?

Will it lead to the necessity for further SCOTUS decisions to clarify what “government speech” is, and what it can and cannot be?

What possible future impact might this have on either free speech cases or religious cases?

Should Summum have approached this as a religious case? And would that have changed the outcome at all?

[ITR_champion]

It seems to me like a simple, common-sense decision. There’s no way that the decorations on a piece of government property can be equally pleasing to everybody, nor is there anything in the Constitution that says they have to be. The only workable way to decide what goes on the property of local government is to let the people of that locality decide by voting for the local government.

[Bricker]

It’s the legally correct decision, and a wise one to boot.

In *Van Orden v. Perry[//i] the Court a Ten Commandments monument, ironically enough also donated by the Fraternal Order of Eagles, and found it safe from an Establishment Clause challenge. That wasn’t a “private speech” issues, but a finding that government speech may include religious elements when their purpose is not not religious, but historical.

It’s noteworthy that this was a 9-0 decision (although several different grounds were advanced by the justices).

From an “is it wise” standpoint – a contrary decision would mean that I could force the city of DC to put a monument anywhere.

[RitterSport]

@Bricker

From an “is it wise” standpoint – a contrary decision would mean that I could force the city of DC to put a monument anywhere.

Couldn’t a contrary decision say that a government shouldn’t put a religious-themed monument anywhere? That may contradict a previous ruling, but that happens.

[DSYoungEsq]

I find the “government speech” rule to be somewhat problematic; in this I share Justice Souter’s concern. I think in the long run, this will end up causing trouble when being interfaced with the Establishment Clause. But assuming that the “government speech” rule is the law of the land at present, the case was never going to be a close one, IMHO.

[Snowboarder_Bo]

I realize that what I quoted from Oyez isn’t the actual decision, just a paraphrase, but assuming it is accurate, what is to prevent a city from only putting up Christian, or even just Baptist, or Southern Baptist, or Reform Southern Baptist monuments and denying all other groups’ proposed monuments?

Or is the paraphrase inaccurate, or my reading of it?

[ITR_champion]

Nothing prevents it. The Constitution does not give the federal government any authority to decide what parks established and maintained by city governments should look like.

[Snowboarder_Bo]

@ITR_champion

Nothing prevents it. The Constitution does not give the federal government any authority to decide what parks established and maintained by city governments should look like.

The COTUS does hold sway over city laws tho.

Anyway, I erred in my phrasing. Replace “city” with “government”. As in:

I realize that what I quoted from Oyez isn’t the actual decision, just a paraphrase, but assuming it is accurate, what is to prevent a city, county, state or the federal government from only putting up Christian, or even just Baptist, or Southern Baptist, or Reform Southern Baptist monuments and denying all other groups’ proposed monuments?

[Snowboarder_Bo]

I’m bumping this thread because no one has answered my last question, and I am still curious about the answer.

[DSYoungEsq]

@Snowboarder_Bo

The COTUS does hold sway over city laws tho.

Anyway, I erred in my phrasing. Replace “city” with “government”. As in:

I realize that what I quoted from Oyez isn’t the actual decision, just a paraphrase, but assuming it is accurate, what is to prevent a city, county, state or the federal government from only putting up Christian, or even just Baptist, or Southern Baptist, or Reform Southern Baptist monuments and denying all other groups’ proposed monuments?

The fact that, if they did so, they would be potentially entangling themselves in the Establishment Clause. Government speech is not unfettered by the requirements of the First Amendment. The fact that the government is allowed to determine what monuments it puts up (rather than having any monument foisted upon it by anyone who desires to see a different message displayed) does not entitle the government to engage in postelyzing via monument. The only reason that a Ten Commandments monument has been allowed to be displayed is that it isn’t seen as advocating Judeo-Christianity, but rather as showing context for the development of our current legal code and ethics. Were the government of Pleasant Grove City to follow up the posting of the Ten Commandments with a posting of a series of monuments espousing Mormonism, without making any effort to tie such monuments in with non-religious ideas and concerns, there would be justifiable concern that the Establishment Clause was being violated.

[Snowboarder_Bo]

Couldn’t the city just say that since it was founded by Mormons, the monuments are historical in nature? Honoring the town fathers or what not?

I admit I’m kind of troubled by the notion of “government speech” in the first place.

I understand and accept that a city has a right to say yes or no to monuments, lest every nook and cranny be occupied by someone’s obelisk or statue. That just makes sense.

But this seems to open up the possibility of cities, counties, etc. abusing the decision since they can justify it with any flimsy “well, this is relevant to our history and that isn’t” argument. Or even “well, we honor our founding history, not the recent history of our city, so your monument isn’t appropriate”.

The government speech thing seems, to me, to muddy the waters far more than it clears them.

[ITR_champion]

@Snowboarder_Bo

I’m bumping this thread because no one has answered my last question, and I am still curious about the answer.

Your last question is the same as the previous question, so the answer is the same. The Constitution does not give to the Supreme Court the authority to decide what city, state, or county governments will or will not put in their parks. That authority is left to the city, state, or county governments, as it should be.

The reason for the existence of the establishment clause was to ensure that there would never be an official “Church of the United States” comparable to the Church of England. The Church of England was set up so that its members had unique privileges anywhere in England. You had to be a member of the Church of England in order to vote, run for Parliament, attend a university, hold any government office, and so forth. In the United States, various states were dominated by various religious groups: Puritans in Massachusetts, Quakers In Pennsylvania, Catholics in Maryland, etc… In order to ensure that these states, including the state governments, could continue to practice their religion freely, the First Amendment was written.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

Nothing in there puts any restrictions on what city, state, or county governments can do. Further, the Tenth Amendment specifically says that any power not specifically granted to Congress is reserved for the states.

There’s a further expansion of federal power in the 14h Amendment.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Putting monuments to a single religion does not kill, enslave, or rob anybody, nor deny equal protection of the laws to anybody.

[begbert2]

@ITR_champion

Your last question is the same as the previous question, so the answer is the same. The Constitution does not give to the Supreme Court the authority to decide what city, state, or county governments will or will not put in their parks. That authority is left to the city, state, or county governments, as it should be.

The reason for the existence of the establishment clause was to ensure that there would never be an official “Church of the United States” comparable to the Church of England. The Church of England was set up so that its members had unique privileges anywhere in England. You had to be a member of the Church of England in order to vote, run for Parliament, attend a university, hold any government office, and so forth. In the United States, various states were dominated by various religious groups: Puritans in Massachusetts, Quakers In Pennsylvania, Catholics in Maryland, etc… In order to ensure that these states, including the state governments, could continue to practice their religion freely, the First Amendment was written.

Nothing in there puts any restrictions on what city, state, or county governments can do. Further, the Tenth Amendment specifically says that any power not specifically granted to Congress is reserved for the states.

Is that really how the establishment clause is usually interpreted and applied nowadays? :dubious:

@ITR_champion

There’s a further expansion of federal power in the 14h Amendment.

Putting monuments to a single religion does not kill, enslave, or rob anybody, nor deny equal protection of the laws to anybody.

Assuming they don’t protect that one religion’s monuments with the same laws they use to deny all the other religion’s monuments, right? (I want my cthulhu statue!)

I’d say that this fits quite neatly under that expansion of federal power. Though I admittedly ANAL.

[Snowboarder_Bo]

@ITR_champion

Your last question is the same as the previous question, so the answer is the same. The Constitution does not give to the Supreme Court the authority to decide what city, state, or county governments will or will not put in their parks. That authority is left to the city, state, or county governments, as it should be.

The reason for the existence of the establishment clause was to ensure that there would never be an official “Church of the United States” comparable to the Church of England. The Church of England was set up so that its members had unique privileges anywhere in England. You had to be a member of the Church of England in order to vote, run for Parliament, attend a university, hold any government office, and so forth. In the United States, various states were dominated by various religious groups: Puritans in Massachusetts, Quakers In Pennsylvania, Catholics in Maryland, etc… In order to ensure that these states, including the state governments, could continue to practice their religion freely, the First Amendment was written.

Nothing in there puts any restrictions on what city, state, or county governments can do. Further, the Tenth Amendment specifically says that any power not specifically granted to Congress is reserved for the states.

There’s a further expansion of federal power in the 14h Amendment.

Putting monuments to a single religion does not kill, enslave, or rob anybody, nor deny equal protection of the laws to anybody.

Do you have a cite for the part I bolded? That’s the first time I’ve ever heard that, with respect to state governments.

[ITR_champion]

This overview of an exhibit at the Library of Congress has information about the stances of the various state governments at the time the Constitution was ratified. Some states had official state churches, some states allowed citizens to direct a portion of their tax money to a church of their choice, and some states had no financial support for churches. This page covers the Consitution itself and how the First Amendment was interpreted. It was definitely interpreted as applying to the federal government and not the state governments. Some of the states continued their financial relationships with churches for decades and I’m not aware of any constitutional challenges to the practice.

[Snowboarder_Bo]

@ITR_champion

This overview of an exhibit at the Library of Congress has information about the stances of the various state governments at the time the Constitution was ratified. Some states had official state churches, some states allowed citizens to direct a portion of their tax money to a church of their choice, and some states had no financial support for churches. This page covers the Consitution itself and how the First Amendment was interpreted. It was definitely interpreted as applying to the federal government and not the state governments. Some of the states continued their financial relationships with churches for decades and I’m not aware of any constitutional challenges to the practice.

Thanks, ITR. I wasn’t aware of that.

Are there any state constitutions that do not have an Establishment-type clause in them?

[Snowboarder_Bo]

@Snowboarder_Bo

Thanks, ITR. I wasn’t aware of that.

Are there any state constitutions that do not have an Establishment-type clause in them?

I see that my own state, Nevada, only contains this:

Sec: 4. Liberty of conscience. The free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State, and no person shall be rendered incompetent to be a witness on account of his opinions on matters of his religious belief, but the liberty of consciene [conscience] hereby secured, shall not be so construed, as to excuse acts of licentiousness or justify practices inconsistent with the peace, or safety of this State.

Utah’s constitution says:

Article I, Section 4. [Religious liberty.]
The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.

So there shall be no union of church and state, but union of church and city is OK? Am I reading that correctly? Is that the correct interpretation?

[Snowboarder_Bo]

@Snowboarder_Bo

So there shall be no union of church and state, but union of church and city is OK? Am I reading that correctly? Is that the correct interpretation?

No, that’s not correct.

I don’t think you were correct, either, ITR when you said:

@ITR Champion

Your last question is the same as the previous question, so the answer is the same. The Constitution does not give to the Supreme Court the authority to decide what city, state, or county governments will or will not put in their parks. That authority is left to the city, state, or county governments, as it should be.

I found this on wikipedia; wouldn’t mind if one of our legal types could weigh in.

The Fourteenth Amendment to the US Constitution, ratified in 1868, makes no mention of religious establishment, but forbids the states to “abridge the privileges or immunities” of U.S. citizens, or to “deprive any person of life, liberty, or property, without due process of law”. **In the 1947 case of Everson v. Board of Education, the United States Supreme Court held that this later provision incorporates the First Amendment’s Establishment Clause as applying to the States, and thereby prohibits state and local religious establishments/b]. The exact boundaries of this prohibition are still disputed, and are a frequent source of cases before the US Supreme Court — especially as the Court must now balance, on a state (equivalent to province) level, the First Amendment prohibitions on government establishment of official religions with the First Amendment prohibitions on government interference with the free exercise of religion.

I understand that this is still the subject of SCOTUS cases, etc. but it seems pretty clear to me that local governments are NOT free from restriction or scrutiny re: religious displays, no matter what the forum is.

Again, if one of our legal-types would care to clarify, I’d appreciate it.