February 25, 2009

Pleasant Grove City v. Summum — a 10 Commandments monument in a city park does not require the city to put up some other religion's monument.

The decision is unanimous, and quite correct:
“We think it is fair to say that throughout our nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity,” and properly so, Justice Samuel A. Alito Jr. wrote for the court....

The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable....

The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park, Justice Alito wrote.

“The Free Speech Clause restricts government regulation of private speech... It does not regulate government speech.”
Here's the whole text of the case, which I'm eager to read, but I have a class in a few minutes, so what I have to add will have to come later. There are 4 concurring opinions, which is interesting: Stevens, Scalia, Souter, and Breyer.

ADDED: From my post-oral argument discussion of the case:
I think it's pretty obvious that the city will win as the Justices (like Scalia) who support free speech for the government will have the support of the Justices (like Breyer) who look at real-world consequences and think practical thoughts.

But there still should be some hand-wringing over the one hypothetical that really did freak out everyone -- well, not Scalia, but almost everyone: What if the United States had decided to express itself by excluding the names of gay soldiers from the Vietnam memorial? Justice Stevens posed the hypothetical, and the Justices struggle with it....

So will the city win with a clearly stated rule, will the city win with a "legal judgment" based on the whole context, or will the city win based on a clearly stated rule that has an escape clause comprising Justice Stevens's Vietnam memorial hypothetical?
It's this aspect of the case that makes me want to comb through the various opinions. But first, it's time to go to class and talk about McCulloch v. Maryland one more time (something I will never get tired of doing).

30 comments:

Host with the Most said...

Professor,

How does this decision affect how you believe the Court will decide the Mojave cross case it just accepted yesterday?

Ann Althouse said...

The issue there is whether the govt could have that monument, so it goes to the same question as the earlier 10 Commandments cases. In this case, there is already a 10 Commandments monument, permitted, and the question was whether a monument that the city didn't want could be forced on the city, on the theory that it would be viewpoint discrimination. So there really isn't much effect at all. The key cases are the older 10 Commandments cases.

Seven Machos said...

It seems to me that whether or not you can have the monument would have been implicit in this case, too.

The Supreme Court needs to get its shit together and lay down a theory that everyone, even the ACLU, understands, and stop taking 12 of these cases every year. Surely, there are more important things.

traditionalguy said...

Do I smell napalm in the morning?

Steven said...

Damn. There goes my shot at getting that Festivus pole erected in front of City Hall.

Seven Machos said...

Not so, Steven. All you need is to get on the city council. From what Althouse has posted, this decision sounds like a glorious victory for the quaint notion that people can govern themselves, where they live. I am happy.

Jason M said...

In which course do you teach McCulloch this late in the semester?

Kirby Olson said...

Maya Lin would never have allowed the Vietnam Memorial to go forward without all of the names involved, including those of sexual minorities. The hypothetical seems extremely misplaced...

The group that was responsible for the Vietnam Memorial was very progressive, and had many famous professors and artists working with them.

I wonder why this hypothetical was chosen.

It seems peculiar to say the least. Being gay or not is irrelevant to whether or not you fought in the war.

What precedent was there for such a hypothetical?

This decision of Pleasant Grove City v. Summum would seem to set a precedent that allows for some ability to restrict religious representation -- I'm thinking about the farce enacted in Washington State's capital building in Olympia last Christmas, where atheists insisted on getting in their digs.

At least one of the three branches of government is still working properly. This decision could not be more important. Symbols are everything.

Kirby Olson said...

Among other reasons why the Gnostics shouldn't be allowed to have public monuments: they don't believe that this world is worth anything at all, but that it was set up by an alien demon. Gnostics in the first few centuries after Christ didn't have any art at all because they had decided that this was an alien world in which they were trapped, and thus it was beneath notice. So it's incoherent to want to make public art today that is gnostic.

If this world is not beautiful, and not meaningful, why would you place monuments in it?

Seven Machos said...

Gnostics should certainly be allowed to have monuments. They just need to get people to agree to it. And Kirby, really, ordinary Christians certainly have their own issues with the material world.

Michael said...

If only God would tell us what to do.

ANY of the Gods.

Seven Machos said...

Until then, Mike, it looks like you'll have to deal with statutes in their honor on public land.

fivewheels said...

IANAL, but I've never been particularly concerned about monuments or creches as examples of a supposed establishment of religion. I think both are pretty far from what we really mean by establishment, and pretty much just come down to arguing about decorating.

As a non-believer, though, I want to know why the hell I can't get mail on Christmas day. Isn't that a much, much clearer sign that the state observes Christianity, and in a way that affects government business? Why isn't that the go-to complaint of the anti-religious?

Trooper York said...

The only important monument decision that was made today was that they moved the Babe Ruth monument first into the new Monument Park in the new Yankee stadium.

They did not put all of the commandments that the Babe broke on the monument because they didn't have enought room. So I guess we are ok no matter what.

traditionalguy said...

There was no hint of Costs for monument upkeep and grounds keeping being the Establishment of a government church. Perhaps sanity creeps back in even as we discuss this.

Cedarford said...

Kirby Olson said...
Maya Lin would never have allowed the Vietnam Memorial to go forward without all of the names involved, including those of sexual minorities. The hypothetical seems extremely misplaced..


Maya Lin was just some young Chinese chick at Yale that submitted her design amongst thousands of rivals..She was awarded the bid. If she had gotten all strange and later insisted she wanted a monument that gave equal billing to the men killed on duty (63,446) and the women killed on duty (8) - Maya Lin would have been discarded and another designer selected.
Talk about this student having a veto over whether or not the memorial would or would not happen or fantasies placing her "in charge" after the contract using her bought design was being carried out by the NPS construction-architect contractee is silly.

Ann Althouse said...

"In which course do you teach McCulloch this late in the semester?"

Conlaw I. The first unit is judicial review. We're starting the second unit, federalism. Separation of powers is last.

Kirby Olson said...

But Maya Lin wouldn't have done that, Cedarford, and she wasn't just some young chick! Nor was she treated like that by the group that was negotiating for the monument. She was treated as an important artist. I think her memorial demonstrates that she was an important artist (she's still fairly young, and has made many more important works).

She is morally sane, and wouldn't have demanded a disproportionate representation for the women that were killed. As an artist, she is all about getting the proportions right, which I think she did do.

Her parents were themselves art professors at -- I think -- Ohio State. Her brother is a poet.

It's not like she was just chosen at random. She was clearly the artist with the best vision at that contest.

And I really doubt if she would have sacrificed her vision, just to get the nod from the committee, nor would they have asked her to do so. The government did, and many veterans did, but she held firm, as did the committee, and as a result, we have a first-rate monument.

It's important to think aesthetically in terms of the public parks. That's partially to think morally, but it's partially not about cluttering up every park with a bunch of junk by every nutter with a cause.

The notion of unity in an artwork can't be sacrificed to the notion of endless diversity. Judgement -- in an artist or in a judge -- has to be at least partially aesthetic...

Which means to think about BEAUTY in this world.

Since the gnostics don't think there is any beauty in this world, it seems hard to understand why they should be allowed to have public monuments.

Let them mess up their own yards.

Smilin' Jack said...

But the really cool thing about this case is this (from Ann's previous post on it, quoting Dahlia Lithwick):

Summum isn't before the court as a religion case. It was brought as a free speech case, and, as Jay Sekulow of the American Center for Law and Justice learns about three minutes into oral argument this morning, if he wins this case as a result of the court's free speech jurisprudence, he will be back in five years to lose it under the court's religion doctrine. The more zealously the city claims ownership of its Ten Commandments monument, the more it looks to be promoting religion in violation of the Constitution's Establishment Clause.

Chief Justice John Roberts puts it to him this way: "You're really just picking your poison. The more you say that the monument is 'government speech' to get out of the Free Speech Clause, the more you're walking into a trap under the Establishment Clause. … What is the government doing supporting the Ten Commandments?"


Hee hee--the Supreme Court gives us more laughs for our tax dollars than any other institution of government.

JohnAnnArbor said...

As a non-believer, though, I want to know why the hell I can't get mail on Christmas day.

Express Mail delivers 365 days.

Methadras said...

Michael said...

If only God would tell us what to do.

ANY of the Gods.


He does, but imbeciles like you constantly choose not to listen.

Methadras said...

The hypothetical, to me shouldn't be that slippery. If the government decides to exclude the names of homosexuals from war memorials, that should be illegal because government policy alone doesn't allow for discrimination based on sexual orientation. Much less sexual orientation while working as a soldier for the government. Just my two cents.

Smilin' Jack said...

The government kicks people out of the military if it finds out they are homosexual. Why shouldn't it kick them off war memorials if it finds out posthumously? People will lose respect for the law if it's not applied consistently.

blake said...

What if the United States had decided to express itself by excluding the names of gay soldiers from the Vietnam memorial? Justice Stevens posed the hypothetical, and the Justices struggle with it....

I give up! What if?

Then the government will have made a poor choice, and right thinking folks will abhor that choice, and sooner or later demand a change.

Are we supposed to be protected from every wrong thing the government might do? Or to say, since the government may do wrong, that it shouldn't do anything.

Wait a tick.

That sounds groovy!

Seven Machos said...

Smilin' -- You don't know the law.

The law is that you can certainly be gay in the military. No can ask you and you have to shut up about it. You must also be abstinent in your gayness.

Please do try to learn the law before criticizing. Doing otherwise makes you look like a slobbering moron. Thanks.

Revenant said...

There was no hint of Costs for monument upkeep and grounds keeping being the Establishment of a government church.

Well, obviously. The plaintiffs didn't sue on Establishment grounds. They wanted their own religious monument on public land. It would have been a bit counterproductive to argue that such monuments are unconstitutional, don't you think?

The plaintiffs sued on the basis that the government can't discriminate against different forms of private speech. Interestingly, the majority opinion held that the Ten Commandments monument was official government speech, which isn't required to be all-inclusive. But as Souter pointed out, it is hard to argue that official government speech in support of the Bible doesn't create Establishment problems.

Revenant said...

He does, but imbeciles like you constantly choose not to listen.

So imbeciles are the people who *don't* listen to voices in their heads?

There are some smart people at the local funny farm, looks like. :)

EnigmatiCore said...

Separation of powers is last.

Ain't that the truth!

Simon said...

Enigmaticore said...
"[Separation of powers is last?] Ain't that the truth!"

Well, something has to be, although it's worth noting that in some senses, federalism is a component of the separation of powers, so the structure is really judicial review - vertical separation of powers (i.e. federalism) - horizontal separation of powers.

Smilin' Jack said...

@Seven: Sorry I'm late getting back to this one. What I said is correct. If the government finds out you are gay, it will kick you out of the military. This has happened many times. Also, die in a fire.