WASHINGTON (BP)–A city should not be required to include an exhibit from an unorthodox religious sect in a public park just because it has accepted a Ten Commandments monument for display in that setting, an attorney argued before the U.S. Supreme Court recently.
The high court heard oral arguments Nov. 12 in the review of a lower court decision that opponents fear could result in the removal of numerous monuments, such as those of the Ten Commandments and honoring military veterans, or the inclusion of a plethora of unusual, even objectionable, displays.
The case, Pleasant Grove City v. Summum, involves a Utah city’s attempt to prevent a barely 30-year-old, religious sect from placing a monument of its principles next to a Ten Commandments exhibit in a park. Pleasant Grove City denied the request in 2003, and the sect, known as Summum, filed suit. Summum alleged the city’s decision violated its federal free-speech rights, as well as Utah’s protection of free expression and prohibition on establishment of religion.
A three-judge panel of the 10th Circuit Court of Appeals agreed in 2007, finding the park was a public forum and the city had abridged Summum’s freedom of speech as protected by the First Amendment. The judges ruled the violation of Summum’s First Amendment rights surpassed the potential harm to the city, which contended its park would be overwhelmed with monuments if the court sided with the sect.
Arguing on behalf of Pleasant Grove City, Jay Sekulow, chief counsel of the American Center for Law and Justice, told the justices the 10th Circuit Court erred both by concluding the Ten Commandments monument constitutes private speech instead of government speech and by deciding the park is a “traditional public forum.”
“Here each of the monuments on display in Pioneer Park [has] been selected by the government, are owned by the government, controlled by the government and are displayed on government property,” said Sekulow. “When the government is speaking, it is free from the traditional free speech constraints of the First Amendment.”
Chief Justice John Roberts quickly challenged Sekulow, telling him, “[Y]ou’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 … free speech clause [of the First Amendment], the more it seems to me you’re walking into a trap under the establishment clause [of the First Amendment]. If it’s government speech, it may not present a free-speech problem, but what is the government doing … supporting the Ten Commandments?”
Associate Justice Anthony Kennedy followed Roberts by telling Sekulow, “[I]t does seem to me that if you say it’s government speech, that in later cases, including the case of the existing [Ten Commandments] monument, you’re going to say it’s government speech, and you have an establishment clause problem.”
Summum did not sue under the federal establishment clause, and the 10th Circuit’s ruling was not based on First Amendment language that prohibits government establishment of religion, Sekulow replied to the justices.
The city established Pioneer Park “to show the pioneer heritage of the community. This was a community of pioneers on a quest for religious liberty,” Sekulow said. The city accepted the Ten Commandments exhibit from the Fraternal Order of Eagles in 1971 “to represent their pioneer heritage,” he said.
The government owns and controls the display — and its message — after it receives it from a private organization, Sekulow said.
Daryl Joseffer, deputy solicitor general, told the court on behalf of the federal government that it is clear the government can choose “the content and viewpoint of monuments on the National Mall” and in other public parks.
“The Vietnam Veterans memorial did not open us up to a Viet Cong memorial,” Joseffer said. “When the Martin Luther King Memorial is completed on the mall, it will not have to be offset by a monument to the man who shot Dr. King.”
Pamela Harris, representing Summum, told the justices Pleasant Grove City’s refusal to accept the sect’s monument is a “violation of the core free-speech principle that the government may not favor one message over another in a public forum.”
Associate Justice Antonin Scalia challenged Harris, asking, “Is it a public forum for everything? It may be a public forum for processions, for parades. But … is it a public forum for anybody constructing a monument?”
Harris said a city “is permitted to make a decision that it will close its public parks to all unattended displays.”
Roberts asked her, “How far do you push that? I mean, you have a Statue of Liberty; do we have to have a statue of despotism? Or do we have to put any president who wants to be on Mount Rushmore?”
The government could respond by adopting a “privately formulated message as its own … clearly and publicly,” Harris said, adding it is unclear Pleasant Grove City is speaking through the Ten Commandments monument. “It can put up a plaque; it can designate it a city monument.”
Veterans associations and other entities have taken the threat to current monuments seriously. The Utah cities of Salt Lake City and Ogden both removed Ten Commandments displays in order to prevent Summum from placing its monuments on city property.
Several veterans organizations, including the American Legion and Veterans of Foreign Wars, jointly supported the Utah city in a friend-of-the-court brief. Other organizations filing briefs in support of the city included the Alliance Defense Fund, Becket Fund for Religious Liberty and Liberty Counsel, as well as 14 states and several cities.
Supporting Summum in briefs were the Rutherford Institute and American Jewish Congress.
The sect’s proposed monument in Pleasant Grove City would contain the Aphorisms of Summum, seven principles the group teaches were a higher law inscribed on the first set of tablets brought down from Mount Sinai, which subsequently were broken by Moses, according to the book of Exodus in the Bible. The Ten Commandments are lower laws, according to Summum, given to the Hebrews on the second set of tablets.
The late Corky Nowell, a former Mormon elder, founded Summum in 1975 after what he described as encounters with intelligent beings during meditation.
Summum is the only organization in the world that provides mummification services, according to its website. Mummification, Summum’s website says, “lends itself … to cloning for the specific purpose of spiritual progression.”
Pleasant Grove City has a population of about 30,000 and is located in north-central Utah.
An opinion in the case is expected to be issued before the high court adjourns next summer.
Tom Strode is Washington bureau chief for Baptist Press.