According to The Associated Press:
The Supreme Court ruled unanimously . . . that a small religious group cannot force a city in Utah to place a granite marker in a local park that already is home to a Ten Commandments display.
The case, reported in NCAC’s last issue of Censorship News, involves a Salt Lake City based religious sect called Summum who have argued that they have a first amendment right to place a statue with their tenets in a public park that already houses a monument of the ten commandments.
The members of the Court, The Associated Press reports, made a distinction between speech in a public park and public monuments, ruling that public monuments are the property of the government and that governments can decide what to display, as long as their ownership of monuments is not “used (as) a subterfuge for favoring certain private speakers over others based on viewpoint.” While speech in public places is a protected form of expression, Justice Samuel Alito argued:
“It is hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression.”
Summum won in the U.S. 10th Circuit Court of Appeals; they ruled that once the park had been opened up to one privately owned viewpoint, it must allow others. The Supreme Court, however, made the distinction that public monuments (even if donated by private entities) are government property. According to Douglas Lee, writing for The First Amendment Center:
[In its ruling], the Court relied on the increasingly powerful government-speech doctrine, which exempts speech made or endorsed by the government from First Amendment scrutiny.
But many people are questioning whether this case is really about free speech at all, or whether it should have been addressed in the context of the establishment clause. As Douglas Lee writes:
The majority of the Court’s members ignored the obvious question created by their ruling: If a religious monument is government speech, doesn’t that speech violate the First Amendment’s establishment clause?
The establishment clause of The First Amendment states: “Congress shall make no law respecting an establishment of religion,” and has generally been interpreted to prohibit the establishment of a national religion by Congress and to prohibit the favoring of one religion over another. Ayesha N. Khan of Americans United for Separation of Church and State argues about the Summum case:
There are two potential Establishment Clause claims here: one would allege that the display of the FOE’s [Fraternal Order of Eagles] Ten Commandments monument reflects an endorsement of religion; the other would allege that the exclusion of Summum’s monument was caused by impermissible religious hostility.
The second claim, she argues, would have a real chance of winning “because the facts hint at religious animus having motivated the City’s denial of Summum’s request.”
Yet another question is raised by the case: If public monuments are government speech, should monuments of a religious nature be allowed at all? As Douglas Lee of the First Amendment Center points out, Justice Samuel Alito Jr. went to great lengths to establish monuments in parks as government speech. In his ruling, he states:
Since ancient times, kings, emperors, and other rulers have erected statutes of themselves to remind their subjects of their authority and power. … A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.
Douglas Lee responds thus:
Doesn’t it follow, then, that religious speech erected in exercise of the government’s “authority and power” endorses (if not establishes) religion? How can a monument intended to convey religious thought or instill religious feeling not favor religion over non-religion? How can government pretend it is not endorsing religion when it incorporates religion into its identity and conveys permanent religious messages?
As Lee concludes, the new decision creates potential conflict between, on the one hand, the desire to associate government speech with public monuments and, on the other hand, the desire to distance government speech from religious speech.