Seven Aphorisms Case

Here is an analysis of the case from the First Amendment Center.

Here is a link to the transcript of today's oral argument.

Here is a NYT article on this Term's religious display case. Here is an excerpt:

Across the street from City Hall here sits a small park with about a dozen donated buildings and objects — a wishing well, a millstone from the city’s first flour mill and an imposing red granite monument inscribed with the Ten Commandments.

Thirty miles to the north, in Salt Lake City, adherents of a religion called Summum gather in a wood and metal pyramid hard by Interstate 15 to meditate on their Seven Aphorisms, fortified by an alcoholic sacramental nectar they produce and surrounded by mummified animals.

In 2003, the president of the Summum church wrote to the mayor here with a proposal: the church wanted to erect a monument inscribed with the Seven Aphorisms in the city park, “similar in size and nature” to the one devoted to the Ten Commandments.

The city declined, a lawsuit followed and a federal appeals court ruled that the First Amendment required the city to display the Summum monument. The Supreme Court on Wednesday will hear arguments in the case, which could produce the most important free speech decision of the term.

The justices will consider whether a public park open to some donations must accept others as well. In cases involving speeches and leaflets, the courts have generally said that public parks are public forums where the government cannot discriminate among speakers on the basis of what they propose to say. The question of how donated objects should be treated is, however, an open one.

Inside the pyramid, sitting on a comfortable white couch near a mummified Doberman named Butch, Ron Temu, a Summum counselor, said the two monuments would complement each other.

“They’ve put a basically Judeo-Christian religious text in the park, which we think is great, because people should be exposed to it,” Mr. Temu said. “But our principles should be exposed as well.”

Su Menu, the church’s president, agreed. “If you look at them side by side,” Ms. Menu said of the two monuments, “they really are saying similar things.”

The Third Commandment: “Thou shalt not take the name of the Lord thy God in vain.”

The Third Aphorism: “Nothing rests; everything moves; everything vibrates.”

Michael W. Daniels, the mayor here, is not the vibrating sort.

Sitting with the city attorney in a conference room in City Hall, Mr. Daniels deftly drew several fine lines in explaining why the city could treat the two monuments differently.

Only donations concerning the city’s history are eligible for display in the park as a matter of longstanding policy, he said, and only when donated by groups with a long association with the city. The Fraternal Order of Eagles, a national civic organization, donated the Ten Commandments monument in 1971.

The donations, Mr. Daniels went on, are transformed when the city accepts them. “Monuments on government property become government speech,” he said.

Under the First Amendment, the government can generally say what it likes without giving equal time to opposing views; it has much less latitude to choose among private speakers.

Asked what the government is saying when it displays the Ten Commandments, Mr. Daniels talked about law and history. He did not mention religion.

Pressed a little, he retreated.

“The fact that we own the monument doesn’t mean that what is on the monument is something we are espousing, promoting, establishing, embracing,” Mr. Daniels said. “We’re looking at, Does it fit with the heritage of the people of this area?”

Brian M. Barnard, a lawyer for the Summum church, said the city’s distinctions were cooked up after the fact as a way to reject his client’s monument. The local chapter of the Eagles, Mr. Barnard added, had only been in town two years when it donated the Ten Commandments monument.

“We have a city that will allow one organization to put up its religious ideals and principles,” Mr. Barnard said. “When the next group comes along, they won’t allow it to put up its religious ideals and principles.”

Last year, the federal appeals court in Denver sided with the Summum church and ordered Pleasant Grove City to erect its monument.

Although the case appears to present questions under the First Amendment’s ban on government establishment of religion, the appeals court said the case was properly analyzed under the amendment’s free-speech protections. That distinguishes it from most cases concerning the display of nativity scenes and the like on government property.

Here is another NYT piece, this one an editorial:

Displays of the Ten Commandments have long been a lightning rod in constitutional law, and so they are again today. The Supreme Court is hearing arguments in a challenge to a city’s decision to allow the Ten Commandments to be placed in a public park, while refusing to allow a different religion’s display. The court should rule that that city’s decision violates the First Amendment prohibition on the establishment of religion.

Pleasant Grove City, Utah, has a city park, known as Pioneer Park, that includes various unattended displays. These include historical artifacts from the town, a Sept. 11 memorial, and a Ten Commandments monument that was given to the city by the Fraternal Order of Eagles, a national civic group.

A religious organization called Summum, which was founded in 1975 and is based in Salt Lake City, applied to install its own monument in the park. The monument it proposed would include the group’s Seven Principles of Creation (also called the Seven Aphorisms), which it believes were inscribed on tablets handed down from God to Moses on Mount Sinai.

Pleasant Grove City rejected Summum’s application. It told the group that it had a decades-old practice of only accepting displays that directly related to the city’s history, or that were donated by groups with longstanding ties to the community. But this was not a firm policy at the time. It was only later that the city adopted a written policy enshrining these criteria.

Summum sued, arguing that the rejection of its monument violated its right to free speech under the First Amendment. The United States Court of Appeals for the Tenth Circuit in Denver agreed. In allowing monuments in its park, the court ruled, Pleasant Grove City had no right to discriminate on the basis of the content of those monuments. The city was free to ban all unattended displays if it wanted to. But once it decided to allow such displays, the court ruled, it had no right to permit the Ten Commandments but bar the Seven Principles of Creation.

The federal appeals court reached the right result, but regrettably, it ducked the issue at the heart of the case, which turns on the Establishment Clause of the First Amendment. The real problem is that Pleasant Grove City elevated one religion, traditional Christianity, over another, Summum. The founders regarded this sort of religious preference as so odious that they included a specific provision in the First Amendment prohibiting it. The United States Court of Appeals for the Tenth Circuit has a bad record on Establishment Clause cases, which made it easier for all of the parties to treat the case as a simple speech case.

But as the American Jewish Committee, Americans United for Separation of Church and State and other groups argue in a friend-of-the-court brief, the Supreme Court should not make this mistake. It should squarely confront the religious discrimination underlying Pleasant Grove City’s rejection of Summum’s monument and make clear that the city violated the Establishment Clause.

There is no shortage of churches, synagogues and private parcels of land where the Ten Commandments could be displayed without the need to include the credos of alternative faiths. Public property like Pioneer Park must be open to all religions on an equal basis — or open to none at all.

What do you think? Suppose the Park accepts a donated display praising civil rights from the NAACP. Must it also accept a display denouncing racial equality from the KKK? Must all community groups have access to the park or "none at all?"