The Seven Aphorisms
Today the Supreme Court granted certiorari in an amusing but potentially important case from the 10th Circuit, Summum v. Pleasant Grove City. (10th Circuit panel decision here, preceded by dissent from denial of en banc rehearing and response to that denial). A city park in Pleasant Grove City, Utah, contains a 10 Commandment monument and some other displays and monuments that were donated by private organizations. Summum is a religious organization headquartered in Salt Lake City. It sought to place a monument containing the "Seven Aphorisms"---rival principles that Summumists (Summumians? Summumistas?) believe were given to Moses by God and then destroyed before the 10 Commandments were given as a second-best substitute. They're explained here. (You have to admire a religion that has as a tenet "Nothing rests; everything moves; everything vibrates." Heraclitus meets string theory!)
The city turned Summum down; Summum sued and eventually won in the 10th Circuit, which held that the park is a traditional public forum, and thus the city had violated the requirement of content-neutrality in accepting the Commandments but not the Aphorisms. The Supreme Court granted cert. For reasons that are not entirely clear to me, conservatives are supporting the city while liberals are supporting Summum in this case.
The argument in defense of the city is straightforward enough: There is a difference between private speech in a public forum and government speech (even in a public forum); the government's decision to accept a privately-funded and/or privately-erected monument can sometimes amount to the government making the message its own; thus, government's acceptance of the Statue of Liberty (a gift from France) would not have obligated it to accept, had it been offered by Nazi Germany, a Statue of Bigotry. (Credit to Lou Reed for that term).
That seems clearly right, but at the other end, one worries about the stopping point of this argument. Government should not be permitted to evade its obligations as the proprietor of a public forum for speech by designating messages of which it approves as "government speech," so that it can disguise censorship as non-endorsement. The real problem exposed in the Summum case is that we don't have a good method for sorting out government speech and private speech in the many contexts in which they are mixed. (For one promising effort, click here.)
Posted by Mike Dorf
The city turned Summum down; Summum sued and eventually won in the 10th Circuit, which held that the park is a traditional public forum, and thus the city had violated the requirement of content-neutrality in accepting the Commandments but not the Aphorisms. The Supreme Court granted cert. For reasons that are not entirely clear to me, conservatives are supporting the city while liberals are supporting Summum in this case.
The argument in defense of the city is straightforward enough: There is a difference between private speech in a public forum and government speech (even in a public forum); the government's decision to accept a privately-funded and/or privately-erected monument can sometimes amount to the government making the message its own; thus, government's acceptance of the Statue of Liberty (a gift from France) would not have obligated it to accept, had it been offered by Nazi Germany, a Statue of Bigotry. (Credit to Lou Reed for that term).
That seems clearly right, but at the other end, one worries about the stopping point of this argument. Government should not be permitted to evade its obligations as the proprietor of a public forum for speech by designating messages of which it approves as "government speech," so that it can disguise censorship as non-endorsement. The real problem exposed in the Summum case is that we don't have a good method for sorting out government speech and private speech in the many contexts in which they are mixed. (For one promising effort, click here.)
Posted by Mike Dorf
8 Comments:
At 9:38 PM,
egarber said…
Correct me if I'm wrong, but as I understand it, the Supreme Court upheld the display of the Ten Commandments on the Texas Capitol grounds a few years back, at least in part because it had a secular tinge -- i.e., it existed along with other historical markers to create an "educational" experience for passersby.
What could happen in this case if the Ten Commandments is the ONLY monument, with no similar historical / educational context? Might the Aphorism folks have an alternate argument that this particular Ten Commandments monument violates the Establishment clause? And maybe the remedy is to either remove it, or create "educational meaning" via the erection of other religious monuments? The implication of the latter is troubling, given how much it would tangle government and religion; but still, I wonder if there's any kind of legal argument there.
At 9:41 PM,
egarber said…
I guess I'm just speaking hypothetically, since you say this in your post:
and some other displays and monuments that were donated by private organizations.
Oh well, I'll still leave the thought out there and waste some DOL comment space :)
At 11:30 PM,
Howard Wasserman said…
I would explain the political split as follows:
Conservatives do not want to allow the religious speech of minor or non-Judeo-Christian religions into the public-expression mix. And many believe Christianity properly should be expressly espoused and advanced by government at the expense of other, minor, non-mainstream religions. Thus the conservatives running to the argument that this is government speech and that minor religions can be excluded.
Liberals would like to see government out of the business of espousing or enabling the advancement of largely religious messages. So a case such as this gives them a chance to hoist conservatives and the Court on its own political and doctrinal petards--if you want to open the public forum to purely religious speech, it has to be open to ALL religions, no matter how seemingly offbeat those religions are.
At 9:18 AM,
Michael C. Dorf said…
I understand why conservatives are not happy about the inclusion of the 7 aphorisms in a public display in a way that seems to place them on equal footing witht the 10 commandments, but their argument has far-reaching implications. In a very common scenario, public authorities will want to resist private placement of expressly Christian displays (e.g., a creche) on public property. If the city wins this case on the govt speech theory, that will make it easier for local govts to resist accepting such displays, even if they have accepted private placement of secular displays (such as war memorials).
At 1:08 PM,
C.M.Corbin said…
Given the Supreme Court's willingness to characterize religious displays as secular (conveying messages about "holiday spirit" or "history"), the conservatives may not actually risk much by categorizing these displays as government speech.
At 4:50 PM,
Michael C. Dorf said…
In response to Caroline: It's true that the conservatives don't risk having their displays invalidated on Establishment Clause grounds; but they do risk having their displays rejected on policy grounds by liberal-leaning municipal governments.
At 5:25 PM,
JohnTaylor88 said…
Does anyone have a theory as to why the case was taken up? I realize that would be armchair psychology, but I'm interested if it's plausible that four conservatives voted to take the case.
At 8:47 AM,
lharpaz said…
In terms of why the Court took this case, it seems relevant that the Tenth Circuit split 6-6 in voting against rehearing en banc and that Judge McConnell wrote a dissent arguing that the panel's opinion "is unsupported by Supreme Court precedent." Among his examples of the troubling consequence of the panel's decision is that Central Park in New York City, having accepted a donation of the statue of Alice in Wonderland, would be forced to accept the Seven Aphorisms Monument unless the city could demonstrate a compelling reason for refusing the monument.
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