A Small Religion Brings a Big First Amendment Question to the Supreme Court: When Does Private Religious Speech Become Government Speech?

By MICHAEL C. DORF
Monday, Apr. 07, 2008

Last week, the Supreme Court agreed to review a ruling of the U.S. Court of Appeals for the Tenth Circuit, granting a small religious organization the right to place monuments in two city parks in Utah. The unusual case of Summum v. Pleasant Grove City sits awkwardly at the intersection of three First Amendment doctrines: (1) the doctrine establishing the rights of speakers, including religious speakers, in a so-called "public forum"; (2) the doctrine delineating government's ability, as a speaker itself, to control the content of its message; and (3) the doctrine concerning limits that the Establishment Clause places on government favoritism among religious messages.

Plausible arguments can be made both for and against the result reached by the Tenth Circuit. Perhaps more important than how the Court ultimately resolves the case, however, will be the process it uses. The Court may simply try to characterize the conduct in question as either private speech or government speech, and then apply the pre-existing precedents. But a better approach would recognize that the act in question--placement of a monument in a public park by a private religious group--has elements of both private speech and government speech, and that the religious nature of the monument may matter. If viewed from this perspective, the case would remain difficult, but its true stakes would be far more clearly visible.

The Facts: A Small Religion Seeks Permission to Erect a Public-Park Monument

Adherents of the Summum religion believe that before giving Moses the Ten Commandments, God gave him the "Seven Aphorisms." Their beliefs hold that these sayings--and their meanings--were lost for millennia, until the Summum faith was founded in the 1970s by a former Mormon, following his purported encounter with extraterrestrials. (Despite Summum's seemingly bizarre beliefs, it should not be dismissed as lacking in seriousness. After all, most religions have tenets that seem incredible to nonbelievers.)

Summum sought permission from two city parks in Utah to erect monuments containing the Aphorisms. Although the parks had earlier granted permission to other groups to erect similar-sized monuments containing the Ten Commandments, Summum's applications were denied.

Summum then sued in federal court, citing provisions of both the federal Constitution and the Utah Constitution. The district judge rejected its claims, but a three-judge panel of the Tenth Circuit reversed, holding that Summum was entitled to erect its monuments. The defendants sought reconsideration before all the judges of the Tenth Circuit (a procedure known as "en banc" review), who divided 6-6. As a result, the panel ruling in Summum's favor stood, and it is that decision that the Supreme Court will review when it hears argument on the case in the fall.

Public Forum Doctrine: No Content Restrictions Should Apply

Summum principally relies on a line of Supreme Court cases setting forth "public forum doctrine." The core idea is this: On some government property, such as inside most government office buildings, the government has the same ability as private firms in analogous spaces, to limit public displays, demonstrations and other speech events. There is no First Amendment right to hold a political rally inside a Social Security office. In other places, however, government property must be open to freedom of speech. These latter spaces--public forums--must be open to organizers of marches, rallies, demonstrations, and other forms of speech. Government can impose reasonable time, place and manner restrictions in a public forum, but may not approve or disapprove of speech events based on their content.

Much of public forum doctrine addresses the sometimes-difficult question of what kinds of government property constitute public forums. Are the portions of an airport outside of the security checkpoint a public forum? How about a state-owned theater? Or a shopping mall on public land? Such questions have divided the courts, but in the Summum case, the forum question is easily answered, because the case law makes clear that public parks (along with streets and sidewalks) almost invariably do qualify as public forums.

Accordingly, the Tenth Circuit ruling in Summum's favor rested on public forum doctrine. The defendant cities had based their respective decisions (to allow one type of monument but not another) on the content of speech--favoring the Ten Commandments over the Seven Aphorisms. That content-based decision, the panel said, could only survive if it passed the exacting judicial test of "strict scrutiny," which asks whether the decision was narrowly tailored to fit a compelling government interest. The panel had little difficulty holding that the challenged decisions failed that test.

Government Speech: The Government Has a Right to Control Its Own Messages

Dissenting from the denial of en banc reconsideration, several Tenth Circuit judges accused the panel of misapplying public forum doctrine. A park may be a public forum for temporary expressive use, such as a march, a concert, or a rally, they said, but a permanent monument is different. As Judge Lucero colorfully argued, from the traditional rule that parks are public forums, "it hardly follows that parks have been held open since time immemorial for the installation of statues of Balto the Husky or the sword-wielding King Jagiello, to note two of the more popular attractions in New York City's Central Park."

Relatedly, two other dissenting Tenth Circuit judges thought that public forum doctrine was inapplicable because a city's decision whether to accept a permanent monument is effectively a decision of what message the city itself should convey. Government need not be content-neutral when government itself speaks.

And for good reason. A contrary rule would lead to absurd results: A government campaign to encourage people to "eat healthy and exercise regularly" would have to be balanced by a contrary campaign to persuade people to "consume junk food and be couch potatoes"; the message of Smokey Bear (a spokesbear for the Forest Service) to "Remember our friends in the forest," would have to be offset by encouragement to "torch the trees"; and most relevant to a case involving monuments, the Statue of Liberty would have to stand next to a Statue of Tyranny.

Moreover, as the dissenting judges in the Tenth Circuit noted, even privately-donated monuments can amount to government speech. Even if a private group designs and pays for the monument, once it is erected in a public park, a permanent monument will be understood by most park visitors as "speaking" for the government, in a way that a person literally speaking from a soapbox in the same park will not be. Monuments in public parks are frequently gifts designed by others. For example, the Statute of Liberty, which is part of the National Parks system, was originally a gift from France. But the decision to accept and display any monument is the government's.

To be sure, there is a danger that the government speech argument, if taken to its logical limit, could completely gut the principle that the government may not pick and choose among messages in a public forum. However, there is no reason to take the argument to its logical limit. Judge Lucero's distinction between temporary speech and permanent monuments is workable enough to preserve the public's right to expression in public forums like a park.

The Establishment Clause Twist: Monuments Can Be Construed to Convey State Endorsement of Religion

The Summum case is tricky because it does not just involve speech, but religious speech in particular. At the time Summum filed its original complaint, Tenth Circuit precedent appeared to foreclose a federal Establishment Clause claim, and so the complaint did not include one. It did include a claim based on the Utah Constitution's Establishment Clause, but the U.S. Supreme Court does not decide questions of state law unless they are intertwined with federal questions in a way that they are not in the Summum case. Thus, no Establishment Clause issue is formally before the Court. Nonetheless, the facts of the Summum case suggest that, if the issue were properly presented, the Establishment Clause would play an important role in the decision.

In the 2005 case of Van Orden v. Perry, the Supreme Court held that a monument displaying the Ten Commandments on the grounds surrounding the Texas Capitol did not violate the Establishment Clause. Although Chief Justice Rehnquist delivered the lead opinion, he did not command a majority of the Court. The controlling opinion was authored by Justice Breyer, who voted in the companion case of McCreary County v. ACLU of Kentucky to invalidate the display of the Ten Commandments in a Kentucky courthouse. Justice Breyer's controlling opinion in Van Orden was thus highly attentive to factual nuance.

According to Justice Breyer, the Ten Commandments display in Van Orden was principally designed to recognize the role the Commandments had played in shaping public morality, and their religious content was substantially mitigated by their presence on Capitol grounds that included 17 monuments and 21 historical markers. Nonetheless, Justice Breyer deemed Van Orden a "borderline case," in which the crucial factor for him was the impermissible message of apparent hostility to religion that would be conveyed by a court order to remove a Ten Commandments monument that had stood for forty years without controversy.

By contrast, Summum has not asked for the removal of the Ten Commandments monuments but, rather, for the addition of its Seven Aphorisms monuments. If the Court pays attention to the symbolic messages of its decision in the way that Justice Breyer did in the Van Orden case, then it should worry about the message that a ruling against Summum would convey: hostility to a minority religion, contrasted with support for the religious tenets of the majority.

That would be a disturbing message for the Supreme Court to convey, regardless of whether the federal Establishment Clause is, as a technical matter, involved in the case. One hopes, therefore, that when the Court takes up the Summum case in the fall, it carefully attends not only to the private speech of Summum and the government speech of the city defendants, but to its own speech as well.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.