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Thursday, November 13, 2008

Oral Argument in Summum

After a post on the background of the case and one about its weirdness,  I wanted to note some interesting things about the oral argument (well, at least I find them interesting).  Whole transcript available here (HT: Religion Clause).  For other background info on the case, see here and here

Short answer: Summum is in trouble.  Maybe 9-0 trouble? 

Longer answer: past the break.

My solemn vow:  Yes, I will post on other topics...

Some interesting things happened, and the whole transcript is worth a read.  But I found most revealing this exchange between Summum's counsel and Justice Souter.   Remember that there's an existing Ten Commandments display in the park, which was given to the City by the Fraternal Order of Eagles in 1971.  In order to win, Summum's counsel needs to convince the Court that that display is really the Eagles' speech, and not really the government's speech.   (It being the Eagles' speech is what makes Summum's claim of discrimination valid.)  So Summum argues that the display was the Eagles' message in 1971, and it's the Eagles' message now.  But that claim is really hard to square with the fact that the display has been owned and controlled by the government and has been sitting in a government park for 36 years.  The Eagles haven't really been involved since 1971 -- so how is this their speech?  So Summum's counsel says that the crucial thing is this -- it can't be the government's speech until the City officially adopts it by some sort of resolution.  Hence this exchange (p. 38):

JUSTICE SOUTER:  So this case -- your claim would disappear if this town in Utah had passed an ordinance saying we adopt the Ten Commandments Monument?

MS. HARRIS:  It would, Justice Souter.  We would no longer have an equal access right going forward --

JUSTICE SOUTER:  But that's -- I mean, if that's all that's involved here, we're engaging in kind of a -- almost a silly exercise in formality.

Now Summum's counsel tries to say it's not a mere formality.  She suggests that much of the Mormon population might object to the display because it's not the Mormon version of the Ten Commandments.  But Souter's formality point doesn't seem to go away -- p.s., it also gives Pleasant Grove an easy way to moot the case.  But besides being arguably a formality, it's difficult to see where the "official resolution" requirement would be coming from in terms of precedent or principle.   (By the way, I am not suggesting that Summum's counsel was anything less than tremendous; it seems just that the facts and the law may not exactly be on Summum's side.)

So let me indulge in a ridiculously overconfident prediction that is really just crazy speculation -- maybe Summum loses 9-0?  I mean, there's real possibilities the Court could fracture along lots of lines.  Both Justice Souter (p. 10-11) and Justice Breyer (p. 24) brought up the possibility of the Court recognizing the category of "hybrid speech."  Justice Stevens (p. 23) suggested that perhaps the government-speech label shouldn't mean that government has absolute discretion to discriminate in abhorrent ways.   I don't think Justice Stevens liked the answer from the deputy SG in the following exchange (Stevens: Well, supposing the Government in the Vietnam Memorial decided not to put up the names of any homosexual soliders.  Would that be permissible?  Joseffer: Yes....").  But I don't think the Court needs to get into any of that to resolve the current case.  I guess we'll see.

Posted by Chris Lund on November 13, 2008 at 12:45 PM | Permalink


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In addition to raising an establishment clause issue, a city resolution would accomplish another thing for Summum. It would brush away all the historical sepia that protects the existing display.

While 38 years is an implausible cutoff date, it is hard to argue that a municipal resolution adopted in 2008 is protected by the same laches like rule that protects the existing monument.

Posted by: ohwilleke | Nov 20, 2008 5:45:10 PM

Mary Jean, good to meet you, I saw your post on the First Amendment Law Prof Blog and thought it was great. I think the arguments that Pamela Harris made were the best ones there were, given her position. But, as I think you think as well, it's hard to see Summum winning.

And as for Stevens' comment about the gay soliders (and Breyer's comment about the potential constitutional problems with government funding Democratic sculptors over Republican ones) -- I think it's pretty easy for the Court to simply stay away from having to address those thorns.

Btw, I too am interested in the chaplaincies, and really liked your piece on the subject.

Posted by: Chris Lund | Nov 19, 2008 2:08:20 PM

Interesting casse, i'm covering it for a Constitutional Law class. Not looking forward to reading the whole arguments section, but the decision should be interesting.

Posted by: Andy | Nov 16, 2008 3:39:10 PM

Just a few responsive comments - actually, Pamela Harris brought up two reasonable arguments for why this Ten Commandments might be viewed as the Eagles' speech - they continue to maintain the monument, and the ongoing controversey surrounding these monuments might lead people to assume that the government is not allowed to support them, similarly to holiday creches and their typical disclaimers. By that time, after numerous go-rounds on the inapplicability of public forum analysis to permanent monuments and the artificiality of a formal "adoption" by the City, no one was paying much attention. For my longer review of the argument, see today's "First Amendment Law Prof Blog." Also, I was surprised that the deputry SG dealt so casually with Justice Steven's hypo re the homosexual soldiers' names. I've started to look at the issue, in my forthcoming Catholic U. L. Rev. article (ssrn.com/abstract=1261294) and think it deserved a more spirited defense. I agree with your 9-0 prediction and highly recommend the transcript as a great read - it was even more fun watching them, so engaged and high-spirited. MJD

Posted by: Mary Jean Dolan | Nov 14, 2008 11:03:05 PM

And of course on this last point, Scalia got some "(laughter)" with his comment that maybe 38 should be the relevant cutoff.

Posted by: Jay Wexler | Nov 13, 2008 2:28:19 PM

It seems like a double-bind at first glance. Look at Chief Justice Roberts' opening question to the City. Roberts says what you're saying here. If the monument is private speech, Free Exercise Clause violation. But if it is government speech, Establishment Clause violation. So Roberts says to the City -- aren't you just choosing your poison?

But the City's attorney has an answer, the right answer, prepared. He says that it's government speech, but that it's secular governmental speech. Yes, it's a Ten Commandments display. But remember that Van Orden v. Perry upheld a Ten Commanmdments display on the theory that at least some Ten Commandments displays can be rationalized as secular.

So that's how the City gets out of the double bind. It ducks into the shadow created by Van Orden. And the argument that this display is different than the one in Van Orden is hard to make. Both are Fraternal Order of Eagles displays; one is 40 years old, one is 36.

Posted by: Chris Lund | Nov 13, 2008 2:01:38 PM

Justice Scalia made that point at oral argument. When counsel for Summum insisted that the City must expressly avow ownership so that observers understand the monument as government speech, Scalia responded that, if the city does that, it would be the first point in Summum's Establishment Clause argument.

Posted by: Howard Wasserman | Nov 13, 2008 1:58:56 PM

The city is in a double-bind, isn't it? If the monument is government speech, there is no free speech violation, but there is a serious establishment clause problem. If the monument is not government speech, there is no establishment clause violation, but there is a serious free speech problem. This suggests that Summum could win by losing. A 9-0 decision that the monument is government speech would, it seems, pave the way for a formidable establishment clause challenge. Am I missing something?

Posted by: AC | Nov 13, 2008 1:17:57 PM

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