On March 31, the Court accepted cert. in Pleasant Grove v. Summum. The case revolves around the right of a Summum group to erect a monument of the Seven Aphorisms in a City Park in Pleasant Grove, Utah that already has a similarly-sized monument to the Ten Commandments.
A park in Pleasant Grove, Utah features a number of monuments commemorating important events in the cities history, the most important of which is one of the Ten Commandments that was dedicated to them by the Fraternal Order of Eagles in 1971. In 2003, the local chapter of the Summum religious order wrote a letter to the mayor requesting that their own monument be erected to honor the Seven Aphorisms. The mayor wrote back rejecting their proposal claiming that all displays in this park must a) “directly relate to the history of Pleasant Grove” or b) be “donated by groups with long-standing ties to the Pleasant Grove community.” Thecity put the mayor’s ideas into law a year later and when the Summum’s new request was ignored, they filed suit claiming injunctive relief and monetary damages.
The district court denied them injunctive relief and they appealed to the Tenth Circuit.
A three-judge panel concluded that the monument’s position in the park was an instance of private speech taking part in a ‘traditional public forum.’ The majorities focus on ‘forum analysis’ came as a shock to many who had expected the Court to consider the monument an instance of government speech to be regulated according to the establishment clause. When the majority called upon ‘forum analysis,’ they triggered the set of criterion that accompany a suppression of a particular form of speech and the strict scruitiny that follows.
The panel first concluded that parks are traditional public forums and as such, “the city cannot close or otherwise limit a traditional public forum by fiat.” The court then sought to find whether or not the city’s policy would hold up against strict scrutiny’s requirements that the law fulfill a ‘compelling interest’ and that it be ‘narrowly tailored.’ The city had not prepared a formal compelling interest claim because it had argued that the forum was nonpublic but the Court assumed that the city’s only argument would be the promotion of the city’s history.
Judge Lucero wrote an opinion dissenting from the Court’s decision not to hear the decision en banc. In his dissent, he argues that parks are not traditional public forums, but may or may not be designated public or nonpublic forums.
Judge McConnell wrote the more interesting of the two dissents in favor of rehearing. He argues that the Ten Commandments monument is a form of government speech and bases his decision in Van Orden (Supreme Court) and Wells v. City and County of Denver (Tenth Circuit.)
The cities were under no obligation to accept the statues, and could have objected to their content. When they accepted donation of the monuments and displayed them on public land, the
cities embraced the messages as their own. Similarly, Duchesne and Pleasant Grovecontrolled the placement of the statues, just as in Wells Denver bore ultimate responsibility for the content of the display.
If the Ten Commandments monument is deemed to be government speech, it becomes subject to a drastically different test than if it had been an instance of private speech in a particular forum.
In a rather surprising turn of events, Judge Tacha filed a response to the two opinions in favor of rehearing. I’m not sure of any other instance on a circuit court in which a judge, no less the Chief Judge, has filed a ‘response’ to a failed rehearing vote. In his response, he answers Judge McConnell’s government speech question:
To make government ownership of the physical vehicle for the speech a threshold question would turn essentially all government-funded speech into government speech. But this would be an absurd result. No one thinks The Great Gatsby is government speech just because a public school provides its students with the text. This is because the speech conveyed by the physical text remains private speech regardless of government ownership.
Briefs by the parties involved and amicus briefs will be filed throughout the summer and the Court is expected to hear the case in November or December.