Yesterday the Supreme Court ruled that the Summum, a small, quirky Utah sect, have no constitutional right to demand that the city of Pleasant Grove display their “Seven Aphorisms” in a public park where the city has long maintained a Ten Commandments monument.
The question before the Court was not whether the Establishment Clause forbade the display of the Ten Commandments (the Court has recently ruled, on that score, that it depends on the context), nor was the Court concerned with the appearance of government privileging one religion over another. The Establishment Clause, in fact, played no part of the Court’s analysis at all.
Instead, the Court, in a unanimous decision by Justice Alito (four justices wrote separate concurrences), said that monuments in a public park constitute government speech, and the government is allowed to say what it wants. The protection of governmental free speech, generally speaking, is a good idea. We want the government to be able to tell people how it is handling our affairs, what it thinks about major issues and debates, etc.
But, in my view, this general principle runs smack into the Establishment Clause when it comes to government speech (not to be confused with the individual speech of government employees, like politicians) on religious topics. Justice Souter admirably noted this problem. He warned the city of Pleasant Grove that it must “take care to avoid the appearance of a flat-out establishment of religion.” This is, to be sure, based on the liberal reading of the Establishment Clause, which sees in “government speech” of the religious sort the real possibility of governmental endorsement of religion over irreligion, or of one religion over another.
What’s interesting, as Souter notes, is that the solution to this problem has been for cities to find “safety in numbers.” A long line of Court precedents in this area demonstrate a more favorable disposition towards government religious speech that takes place in the context of secular speech (i.e., creches surrounded by Frosty) or in the context of other religious speech (creches surrounded by menorahs). The problem with this, though, is that the government can hardly be said to be speaking when it is sending a totally incoherent, jumbled-up message, and when significant parts of that message are provided by private individuals and associations (as public monuments often are). So, Souter says, “the careful government” is led “to accept other monuments,” but it seems to both him and me that this erases the government-speech rationale for denying the Summum’s claim. For if a government is going to let everybody put up monuments in order to dilute the constitutional inappropriateness of the monument that the government really cares about in the first place, then it begs the question: Why not the Summum’s monument? Isn’t the denial of their claim a privileging of everyone else’s perspective over theirs? And should the government be allowed to declare that certain of its citizens are just wrong, unworthy of a place in the public sphere?
I don’t think so. It’s sad to me that the Court seems to think so. And it’s puzzling to me why Souter would nevertheless sign on to the majority opinion. Not a good day for the Court when even those justices who see the errors in its jurisprudence give their imprimatur to those who don’t.