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Wednesday, February 25, 2009

Pleasant Grove City v. Summum

The Supreme Court handed it down today.  Summum lost.  And it was unanimous -- as one somewhat obnoxious but yet ruggedly attractive commentator predicted.  I've read through it once now.  The majority opinion strikes me as quite sensible.  It stays well within existing doctrine, and avoids unnecessary and fractious issues (which I actually go into in the above post).  One striking thing: The majority opinion completely ignores the religious dimensions of this case.  Forms of the word "religion" appear only four times in the majority opinion -- twice to describe Summum as a religious organization (see p. 2 & p. 2 n.1), once in referring to John Lennon's musical lyrics in "Imagine" (see p. 12 -- who says Justice Alito can't have fun?), and once in referring to the common museum with religious exhibits hypo (p. 13 n.5).  The majority puts aside the Establishment Clause issues, and treats this Ten Commandments display as it would any secular one. 

The concurring opinions pick up the issue a bit.  Justice Scalia writes an opinion (joined by Thomas, but interestingly not by Alito, Roberts, Kennedy or Breyer) opining that this display clearly is safe harbored by Van Orden.  And Justice Souter addresses the Establishment Clause as well.  His opinion is probably the one to really think about.  He, quite rightly in my view, recognizes the potential for disaster when the "government speech" doctrine begins to apply to government religious speech.  Here's his provocative thought:

The interaction between the "government speech doctrine" and Establishment Clause principles has not, however, begun to be worked out.  The case shows that it may not be easy to work out.

This is something too that I've written about before, and plan on working on later.  And certainly I can see this paragraph setting other pens in motion as well.

Posted by Chris Lund on February 25, 2009 at 02:40 PM | Permalink


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Having written an amicus brief and article on this case, I could (and probably will at some point) go on and on; for now, just want to join in the quick comments. For one, it is interesting that J. Roberts started the oral argument by saying to Pet."you'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, the more it seems to me you’re walking into a trap under the Establishment Clause," and only J. Scalia responded directly with the assurance that the decision was not pushing the city "from the Free Exercise frying pan into the Establishment Clause fire." More later, but I agree with Ian's point re the blurring of the Good News etc. line - J. Souter noted that the more, and the more diverse, the monuments (helps re Est.Cl.), the weaker the claim that govt message, not forum (hurts re Free Sp.). This is a fascinating puzzle, and I do think there's some incremental change with explicitly naming the Ten Commandments government speech.... Though I'm not sure the current doctrine is that Ten Com. + Aphorisms are less constitutional than Ten Commandments alone - it all depends on some "clear as a bowl of oatmeal" inquiries. . . .

Posted by: Mary Jean Dolan | Feb 27, 2009 4:32:39 PM

Even if it would be touchy to point out to Alito the gratuitous hokiness of quoting Imagine in full, couldn't (shouldn't?) someone raise a copyright concern? I don't see much of a fair use argument for quoting in their entirety the lyrics of a song (which constitute a literary work in their own right) without out any need to do so or even any fig leaf gesture toward commenting on the contents of the lyrics themselves.

Posted by: Chris Newman | Feb 27, 2009 9:36:27 AM

I'm not sure. I think Jay's point about divisiveness is very interesting, because--as I read it-- that was the critical issue (counting noses) in Van Orden; not historical significance. I think Scalia, with his "narrowest reading of the narrowest opinion" business, doth protest too much. Personally, I think the Van Orden historical bit has been really dubious from the outset, even as generally sympathetic as I am to nonpreferentialism, etc... I think the doctrine that sees Ten Commandments + Aphorisms as more problematic then Commandments alone is not a durable one.

Posted by: Ian | Feb 27, 2009 2:08:09 AM

Ian, are you thinking that the new Court is going to overrule Van Orden? I could well be wrong, but I can't quite see that. It's true that Breyer, Kennedy, Alito, and Roberts didn't join Scalia's opinion here. But I think it's just that they're cautious and don't want to prejudge the situation. I'd tend to think that ultimately, Scalia's take will prevail with respect to this display: Yes, this Decalogue is government speech, but it's old and therefore "mostly secular" (as Justice Breyer would say) and thus constitutional.

Oh, Jay, I agree in thinking it would be unconstitutional for Pleasant Grove to allow the Summum display. Or, more accurately, it would be unconstitutional for Pleasant Grove to allow the Summum display without creating a public forum for everyone to put up their displays. And it is darn strange that the Ten Aphorisms plus the Ten Commandments is more constitutionally suspect that the Ten Commandments alone. And finally, I don't think Breyer's opinion is calling for a display-by-display inquiry on divisiveness. I read the divisiveness element as his justification for why older Decalogues and those surrounded by other exhibits are more constitutional.

Posted by: Chris Lund | Feb 26, 2009 5:58:11 PM

I think the most interesting aspect of the case is the long-term threat it presents to the Widmar/Lamb's Chapel/Good News line, which conflate Establishment and Free Expression analysis. Those decisions require the state to open its doors to all comers--religious or otherwise--when allocating public resources for use as a public forum, and as such lay the foundation for charitable choice. The keystone of that doctrine, however, is that the state does not actually endorse a religious viewpoint by opening that door--but treating the Decalogue monument as "government speech" in a public forum certainly begs the question.

Now, I recognize that Scalia hopes to preempt the inevitable follow up appeal by blustering on about Van Orden and "historical significance" etc... But that is flimsy doctrine to begin with--it transparently favors well-established, "historical" (and likely majority) religions over newer minority groups--and it is not at all clear from the opinions in Summum that it will carry the new Court. Alito, for one, did not sign on, and I think Stevens and Ginsburg's concurrence reveals a certain Machiavellian calm before the storm

Posted by: Ian | Feb 26, 2009 5:20:42 PM

What would happen if the town now accepted the Summum Monument and put it in the park and someone sued, arguing that the park had violated the Establishment Clause by endorsing the Summum religion? Maybe the Court would reject the claim on a sort of Alleghenyian "lots of religions together means pluralism" rationale, but isn't it strange that the challenge to the Summum Monument would, after Van Orden, be a stronger one than a challenge to the Ten Commandments one? To me, what's interesting about this case is how it sheds light on the main problem, which is the Van Orden one, of whether Ten Commandments displays violate the Establishment Clause. Justice Breyer in his opinion in Van Orden (the one I like to describe as being "clear as a bowl of oatmeal") thought it important that the monument there had never caused any divisiveness. But the one in Utah, it would appear, has now caused a lot of divisiveness. Does that matter? Would it matter to a court evaluating the Utah Ten Commandments monument under Van Orden? Should it?

Posted by: Jay Wexler | Feb 26, 2009 5:06:03 PM

One striking thing: The majority opinion completely ignores the religious dimensions of this case. Dimensions which, as Justice Souter notes, weren't raised or briefed, though, right? Deciding the case as it comes (and only the point on which cert was granted) fits with the Chief's stated preference for deciding narrower points with larger majorities, and although it tees up the more frontal assault Justice Scalia's concurrence hopes to forestall, with the all-but inevitable distraction and cost to the city of the forthcoming establishment clause challenge, that doesn't seem much reason to reach out and decide more.

Posted by: Simon | Feb 26, 2009 9:25:28 AM

Yes, perhaps one of his clerks should have gently suggested deleting that footnote. But I guess that can be hard to point out.

As for Souter's point, I immediately thought of legislative prayer (as I often do). Say a local government has prayer given by invited outside clergy, but it wants all the prayers to be nonsectarian. That's fine; the government can require that. It has the authority to shape the prayers how it wants -- that's the government-speech doctrine. It stinks for some, of course; it stinks for the people who are religiously committed to praying in Jesus’ name, for example. In fact, it's the sort of denominational discrimination that would presumptively run afoul of Larsen v. Valente. But it's not unconstitutional -- because of the government-speech doctrine. And that's the way in which the government-speech doctrine (as applied to governmental religious speech) ends up countenancing denominational discrimination.

Now with Ten Commandments displays, I can't see much risk of Justice Souter's fear ever really developing. The Van Orden / McCreary County line seems to only create a narrow exception for Ten Commandments displays of antiquated vintage. So it's not like Pleasant Grove could begin accepting other religious monuments while denying Summum's. That wouldn't fly under McCreary County -- there's no need to bring Larsen v. Valente into it.

Posted by: Chris Lund | Feb 26, 2009 12:28:32 AM


I agree that Justice Alito's opinion was "sensible", but cringed at the mentioning, let alone the quoting-in-full, of Lennon's words-cannot-capture-the-vapidity-of-it "Imagine." Groan. Let's hope cooler heads prevail before the thing gets into the printed U.S. Reports.

I have to admit, I didn't quite get Justice Souter's point. Surely, there's nothing new about the fact that, notwithstanding the general rule that the Free Speech Clause does not constrain the government when it is "speaking" (for itself), the Establishment Clause does. The "interaction has not begun to be worked out"? Maybe I've been misunderstanding things all along, but I thought this "working out" was precisely what was going on in, e.g., Van Orden. No?

Posted by: Rick Garnett | Feb 25, 2009 9:57:27 PM

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