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Wednesday, March 04, 2009

Dolan on Summum

Prof. Mary Jean Dolan (John Marshall) sends in these thoughts, about the Summum case:

Maybe because I’ve been working on the Pleasant Grove case for a year now (and maybe also because my grade-school age children’s toys don’t make for charming metaphors!)(see Jay Wexler’s March 2nd post), I’d like to add to the discussion about the case, and to hear what others think on a point I’ve been ruminating over.  As Chris Lund’s on-the-spot Feb. 25th post pointed out, the Establishment Clause questions so prevalent in the press, and at oral argument, were glossed over to get that 9-0 judgment.  It may be true that for Ten Commandments monuments, Van Orden is the last word, at least for a case involving such similar facts.  (Justice Souter’s concurrence saying, yes, it’s government speech, all right, “an expression of a government’s position on the moral and religious issues raised by the subject of the monument,” seems fairly unlikely to go far, given that the “secular message” tactic previously carried the day.)   

    Avid readers of the decision may have noticed that none of the five opinions cite to Petitioner’s briefs.  While Justice Alito addressed Respondent’s arguments, he relied solely on several amicus briefs, including the IMLA brief.  Partly that’s because the amici provided useful examples of the huge (negative) impact a decision for Summum would have had on the country’s monuments, but there may be more to it than that. 

Petitioner’s counsel, Jay Sekulow, consistently argued that monuments are governed by the “speech selection” cases (Forbes, Finley), while Justice Alito’s decision built on the Johanns line (substantive government message, conveyed with private assistance).  Justice Alito seemed to agree with an argument emphasized in the IMLA brief, that when a city decides to display a donated monument, it is expressing at least a broad identity message.  Petitioner likely had an eye on the Establishment Clause and positioning for future cases.  (Shameless plug alert:  Emphasizing my differences with the ACLJ on the Establishment Clause, inappropriate in writing IMLA amicus brief, is one reason I took the unusual step of writing a before-the-decision law review article, in Catholic University Law Review.)

So, the Pleasant Grove decision does seem to saddle governments with their monuments’ messages.  (Nailing down those messages, though, still provides wiggle room.)  Any early thoughts on how this particular point will affect the play between the Free Speech Clause and the Establishment Clause in next cases, and other contexts?   I’d love to hear from others who’ve given this case extended thought.

Posted by Rick Garnett on March 4, 2009 at 04:12 PM in Religion | Permalink

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