Supremes disappoint Summum

SUPREMES DISAPPOINT SUMMUM…. There’s been a quirky legal fight out of Pleasant Grove City, Utah, that’s been unfolding for several years, and which the Supreme Court wrapped up yesterday. The conclusion is a little unsatisfying, though.

If you’re just joining us, a small park across from the town’s city hall has about a dozen objects, including a wishing well, a millstone from the city’s first flour mill, and a Ten Commandments monument. In 2003, a religious group called the Summum asked the city to let them erect a monument with its Seven Aphorisms in the park. The city rejected the request, and the Summum filed suit.

The not-especially-liberal 10th Circuit ruled with the Summum and gave local officials a choice: allow all faith to erect their own displays in the park, or remove the other monuments. (Conservatives, both in Utah and across the country, who say we need more religion in the public square, refused to come to the Summum’s defense. I wonder why.)

Yesterday, the Supreme Court weighed in and reversed the appeals court’s ruling.

A public park in Utah that includes a monument to the Ten Commandments need not make room for a similar monument reflecting the beliefs of an unusual religion called Summum, the Supreme Court ruled on Wednesday.

Permanent monuments in public parks are not subject to the free speech analysis that applies to speeches and leaflets in public forums, the court ruled. Instead, Justice Samuel A. Alito Jr. wrote for eight justices, such monuments are “best viewed as a form of government speech.”

Since the government is free to say what it likes, Justice Alito said, the Summum church’s right to free speech under the First Amendment was not violated by the city’s rejection of its monument.

The decision was unanimous but fractured. In four concurring opinions, six justices set out sharply contrasting views about the decision’s scope and consequences.

It’s unsatisfying because the case wasn’t even considered on the grounds of religious liberty. I’d hoped the high court would have some thoughts on whether public officials could promote (endorse?) one religion’s sacred text, while turning down another faith’s “aphorisms.” Why let public officials play favorites among faiths on public property?

Alas, the justices didn’t address this at all, basing the decision on free-speech grounds. That said, Justice Souter was wise to raise a red flag:

Justice David H. Souter, who joined the court’s decision but did not adopt Justice Alito’s reasoning, was not so sure. If the Ten Commandments monument is now understood to be government speech, he said, “the specter of violating the Establishment Clause will behoove” the city “to take care to avoid the appearance of a flat-out establishment of religion.”

One solution, Justice Souter said, is “safety in numbers, and it will be in the interest of a careful government to accept other monuments.”

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